As reported in a prior Newsletter, New York State is mandating paid family leave for all employees. The New York Paid Family Leave Benefits Law (“PFLBL”) will become effective January 1, 2018. In late February, the New York State Workers’ Compensation Board issued important draft regulations that will impact this law.
What is PFLBL?
PFLBL guarantees paid family leave (“PFL”) with job protection for essentially all private sector employees. If the private sector employer has more than one employee and is required to provide statutory disability insurance, the employer must provide paid family leave as well.
How PFLBL Works
PFL becomes a part of disability insurance. If employers are exempt from providing disability insurance, they can choose to provide their own stand-alone PFL. New York and New Jersey are among the five states that have state-mandated disability insurance requirements. The benefits will be fully phased in by January 21, 2021 and will increase in benefit amount and duration annually during the “phase-in” period between January 2018 and January 2021.
Employers are not required to fund PFL, but they are obligated to submit the premium whether deductions are paid directly from the employer or through deductions collected from employees. Further, employers cannot make deductions from employees retroactively or withhold more than the maximum contribution.
Benefits and Eligibility
To be qualified to receive benefits, an employee must have worked full-time for 26 consecutive weeks. Part-time employees must have worked for at least 175 days. An employee is entitled to take PFL in daily increments and intermittent intervals. Starting on January 1, 2018, employees will be eligible to take up to eight weeks of paid leave during a period of 52 consecutive weeks.
Likewise, the maximum amount of weekly paid benefits increases throughout the phase-in period. Employees will be entitled to a portion of their weekly wage but cannot exceed a percentage of the New York State average weekly wage, which is updated annually by the NYS Department of Labor.
An employee is eligible to take PFL to: (1) care for a family member with a serious medical condition; (2) bond with a child; and (3) when a family member is called into active military service. Additionally, an employee involved in the adoption process or foster care placement is entitled to PFL even prior to the actual event, in order to complete tasks necessary for the event, such as court appearances, travel, etc. An employee is not eligible to take PFL for routine examinations, cosmetic treatments, or minor illnesses.
Employee and Employer Responsibilities
An employee seeking to use PFL must provide the employer at least 30 days’ notice prior to the start of the leave. If the qualifying event is unforeseeable, the employee must provide notice as soon as possible. Once an employee provides notice of a possible qualifying event, it is the employers’ duty to seek further information to determine if the event is eligible for PFL. Employees cannot take disability leave and PFL at the same time. If an employee is qualified for both, the total duration cannot exceed 26 weeks in a consecutive 52-week period for the same qualifying event.
When an employee completes his or her PFL, the employer must reinstate the employee to the position held prior to leave, or to a similar position with comparable benefits upon the employee’s return. Employers are prohibited from discriminating or retaliating against employees as a result of filing and/or receiving PFL benefits. During an employee’s leave, an employer must maintain existing health insurance benefits so long as the employee is continuing regular premium payments. Employers are required to notify employees of their rights under the PFLBL. Employers will be penalized if they fail to comply with the law.
Overlap with Other Laws
Due to the overlap in qualifying reasons for leave, it is possible that employees will be eligible under both the PFLBL and the federal Family Medical Leave Act (“FMLA”). An employee is eligible for FMLA leave if he or she has worked for the employer for at least 12 months and worked for at least 1,250 hours during the previous year. If FMLA applies to an employer, they must coordinate PFL with FMLA. Employers must notify employees if they intend to designate the leave as FMLA leave under the PFLBL. Employees are prohibited from receiving disability and PFL benefits concurrently. PFLBL also overlaps with rules regarding employee paid time off.
New Jersey Family Leave Insurance
New Jersey’s Family Leave Insurance (“FLI”) is a provision of the New Jersey Temporary Disability Benefits Law. Under this provision, cash benefits may be payable for up to six weeks in a 12-month period to provide care for a seriously ill family member or to bond with a newborn or newly adopted child. Unlike New York’s PFLBL, New Jersey’s FLI does not guarantee job protection and employees are encouraged to ask their employer if they are eligible for benefits under the federal FMLA, which offers some job protections.
New York employers should carefully update their policies and procedures in order to properly prepare for the implementation of PFLBL.