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In our Newsletter earlier this year, we addressed the New York Paid Family Leave Benefits Law (“PFL”), focusing on what PFL is, how it works, the requirements, and employer and employee responsibilities. With the effective date of January 1, 2018, this article will discuss some of the frequently asked questions we have been receiving in connection with this law.
1) Are all employers required to provide PFL?
Employers who are required to provide disability leave must provide PFL. Employers who are exempt from providing disability leave (municipalities, schools, and unions) may choose to provide stand-alone PFL. Employers are required to pay the PFL premium for their entire group, whether they withhold from employees or not. Employers may not retroactively make leave deductions and may not withhold more than the maximum allowed employee contribution.
2) Are out-of-state employers with employees working in New York required to provide PFL?
Yes. As with New York Disability Leave, out-of-state employers are required to provide PFL coverage if the employer employs one or more individuals on each of at least 30 days in a calendar year in New York.
3) What must employers do with respect to their policies?
Employers are required to add PFL to their written policies, such as in an employee handbook. Employers are required to post a printed PFL notice published by New York State.
4) Do employees automatically receive 12 full weeks of leave?
No. Starting in 2018, employees are entitled to eight weeks of PFL. This increases to 12 weeks when PFL is fully phased in in 2021.
5) What are the annual increases?
The schedule for the increase is as follows:
Max. % of Employee & State Average Weekly Wage
6) Is participation required?
Yes. PFLBL is required for nearly all types of employees. A seasonal worker, for example would qualify as an exception to the participation requirement because it is a job that will not allow employees to achieve the 26 continuous weeks or 175 days of employment necessary to qualify for PFL.
7) What are the difference between PFL and FMLA?
• Many more employees are covered by PFL than by FMLA.
• To be eligible for FMLA leave, an employee must work for an employer with 50 or more employees, whereas PFL only requires that the employer have one or more employees to be eligible.
• PFL is paid, while FMLA leave is not.
• FMLA allows employees to use leave in increments of 15 minutes, whereas PFL requires employees to use leave in increments of one full day.
• PFL does not permit leave to care for one’s own injury, whereas FMLA provides leave for that reason.
• Under PFL, a qualifying family member is a spouse; domestic partner; child; parent; grandparent; and grandchild. Under FMLA, a qualifying family member is a spouse; a child; and a parent.
• Under FMLA employers have the option to require an employee to use their existing sick or vacation time while they are on leave. With PFL, employers cannot require an employee to use any of their sick or vacation time while they are on leave.
8) Can employees add PFL time to FMLA time to extend the leave period?
If employees are entitled to both PFL and FMLA, they run concurrently – meaning that PFL time cannot be added to FMLA time to extend the leave period.
However, employees can potentially exhaust 12 weeks of FMLA leave during 2017, but still receive eight weeks of PFL for the same reason during 2018.
9) Can employees take disability leave and PFL at the same time?
No. Employees are not allowed to take disability leave and PFL at the same time. If the employee qualifies for both, the combined duration cannot exceed 26 weeks during a consecutive 52-week period for the same qualifying event.
10) Are employees permitted to take PFL and use his/her vacation and/or sick time together?
This depends on the employer’s policies. If an employer permits employees to use sick and/or vacation time during PFL under the employer’s policies, so that the employees receive their full salary for part or all of the leave, then the employees can do so.
11) Is an employee required to use all of his/her sick time and/or vacation before using PFLBL?
An employer may not require employees to use either, but may permit employees to use vacation or sick leave to receive their full salary.
12) Can employees use PFL if they are collecting workers’ compensation?
No. If an employee is not working and is collecting benefits under workers’ compensation, he/she is not permitted to use PFL.
13) Can part-time employees use PFL?
If an employee works less than 20 hours a week, he/she will become eligible after 175 days of work. If an employee works more than 20 hours per week, he/she will become eligible after 26 consecutive weeks of work.
14) Can an employee use PFL to care for an eligible relative living out of the state?
Yes, but the family member must be an eligible family member. The employee is required to provide the medical certification.
15) Can an employer collect costs from employees to cover PFL?
Yes. New York’s PFL is entirely employee-funded. Employers are permitted to collect the cost of PFL through payroll deductions. In 2018, the maximum employee contribution shall be 0.126% of the employee’s weekly wage and up to the annualized New York State average weekly wage.
16) May an employee use PFL during her pregnancy?
Only after birth. PFL is not available for pre-natal conditions.
17) Are non-U.S. citizens entitled to PFL? What about undocumented workers?
Citizenship and immigration status do not impact PFL eligibility.
18) Are independent contractors eligible for PFL?
No. If an individual does not have a regular employer and works as an independent contractor, he/she is not entitled to PFL unless he/she purchases coverage.
19) May spouses use PFL at the same time?
If two spouses work for different employers, they are both eligible to take PFL at the same time. If the spouses work for the same employer, the employer can deny PFL to more than one employee at the same time to care for the same family leave recipient, or to bond with a child.
20) Do other states have PFL?
New York, California, Rhode Island and New Jersey are the only states that provide a PFL benefit. Once New York’s PFL program is fully implemented, it will be the longest and most comprehensive PFL program in the nation.
The above FAQs are not exhaustive. If employers have further questions, we encourage them to seek legal assistance to ensure full compliance with PFL.