Q: What do I need to know about the new New York Paid Family Leave Benefits Law?
A: The New York Paid Family Leave Benefits Law (“NY PFL”) provides employees with paid leave for bonding with a new child, caring for a close relative with a serious health condition, and leave associated with when their spouse, partner, child, or parent is on active military duty or has been notified of an impending call of active duty.
Unlike the federal FMLA, which applies to employers with 50 or more employees within a 75 mile radius, all New York employers that have employed one or more individuals for 30 consecutive days are subject to the new law. The NY PFL also expands the definition of a covered employee from the FMLA. Employees who have worked for at least 26 consecutive weeks (for employees whose regular schedule is 20 or more hours per week) or 175 days (for employees whose regular schedule is less than 20 hours per week) are eligible for NY PFL.
The NY PFL begins January 1, 2018, and will be phased in over a four-year period. For 2018, employees can take a maximum of 8 weeks of leave, and the maximum pay during the leave is 50% of the employee’s average weekly wage, which caps at 50% of the state average weekly wage (which is currently $1,296). For example, in 2018, an employee who makes $1,000 per week would receive a benefit of $500 per week. An employee who makes $2,000 per week would receive a benefit of $648 per week (half of $1,296). Both the maximum weeks of leave and maximum pay during leave will increase over the four-year phase-in period, with 12 weeks of leave in 2021 and payment increased to a maximum of 67% of the employee’s average weekly wage.
Unlike NJ Paid Family Leave, which is administered through the State’s existing Temporary Disability Benefits Program, the NY PFL will be administered through each individual employer’s disability policy (or through self-insurance), and the premiums will be funded by employees through payroll deductions. The current rate of contribution for NY PFL is 0.126 percent of an employee’s weekly wage, up to a maximum of $1.63 per week. Employers may start making the deductions on July 1, 2017, so employers should contact their disability insurance carriers and payroll providers to prepare.
If the need for NY PFL is foreseeable, employees must provide at least 30 days of notice of their need for leave, and if the need is not foreseeable, the employee must provide notice as soon as practicable. Similar to the FMLA, employers must maintain employees’ existing health insurance benefits for the duration of NY PFL, and employees are entitled to reinstatement upon their return to work.
Employers may permit employees to use sick or vacation leave so that they can be fully compensated for time-off, but employers cannot require use of sick or vacation leave. If an employee is eligible for leave under both FMLA and NY PFL, employers may designate the leave as both FMLA and NY PFL, even if the employee declines to apply for NY PFL payments.
To prepare for the law and set employees’ expectations, employers should consider communicating with their employees about the new law in advance, especially if employers will be making payroll deductions in the coming months. It is also prudent to explain the maximum wages that the NY PFL will provide – many employees may assume “paid family leave” means that they will receive full wages while on leave.
It is also important for employers to train managers and human resources personnel on the NY PFL so that it is properly implemented. Employers should train key staff on the details of NY PFL, as well as the interaction between the NY PFL and other types of leave. As we have discussed above, NY PFL has some similarities to the FMLA, but also has distinct differences, such as eligibility requirements and coverage. Employers should be careful not to assume that the two laws cover the same events. For example, leave under the NY PFL cannot be taken for an employee’s own serious health condition, while FMLA leave can. This means that a pregnant employee may take up to 12 weeks of FMLA leave, and then take additional leave under the NY PFL to bond with her child.
Employers should stay tuned for continuing developments as the NY PFL is interpreted by the courts. In addition, New York State published updated regulations at the end of May, for which the comment period recently closed. We expect that the State will issue updated guidance and/or revised final rules in response to these comments.
— Jessica Rothenberg