This article was written by Emina Poricanin of Hodgson Russ LLP
The New York State Paid Family Leave Benefits Law (PFLBL), one of the strongest and most comprehensive paid family leave laws in the country, goes into effect on January 1, 2018. The law will provide job-protected, paid leave to nearly all private sector employees in New York State which can be used for bonding with a newly born, adopted, or fostered child; caring for a family member with a serious health condition; or assisting loved ones when a family member is deployed abroad on active military duty.
As a small business owner and employer, you’ll need to be well-informed on the new law’s requirements before it goes into effect to make necessary changes to your business’s policies and procedures.
Am I a “covered employer” under the new law?
All private sector employers in New York State with one or more employees are considered “covered employers” and must comply with the law. Public sector employers are not automatically covered by the new law, but may choose to opt into the program.
Which of my employees are eligible to receive benefits?
Employees who work 20 hours or more per week are eligible for PFLBL benefits after they have worked at least 26 consecutive weeks of employment before the first full day of leave for a covered employer. Employees who work less than 20 hours per week are eligible after 175 days worked before the first full day of leave.
For what reasons can an employee take paid family leave?
Eligible employees may take paid family leave for the following reasons:
To provide care for a family member because of the family member’s serious health condition.
To bond with their child during the first 12 months after the child’s birth, or during the first 12 months after placement of the child for adoption or foster care.
To attend to obligations from a spouse, domestic partner, child, or parent of the employee being on active duty or being notified of an impending call to active duty in the United States armed forces.
When the need for family leave is foreseeable, employees must provide their employer with at least 30 days’ advance notice. If leave is foreseeable but will begin in fewer than 30 days, the employee must provide as much notice as possible.
What benefits will employees receive under the PFLBL?
Under the law, eligible employees are entitled to a paid leave of absence and are required to be reinstated to their position or a comparable position when they return from leave. Similar to the Family Medical Leave Act (FMLA), employers must also maintain the employee’s health benefits during paid family leave as if the employee continued to work. Additionally, employers are prohibited from retaliating against any employee who seeks or receives paid leave benefits.
The amount of leave required and the amount of pay that employees will receive will be phased in based on the following schedule:
The New York State Department of Labor calculates the NYSAWW based on wages from the prior calendar year, and it is set annually on March 31st. The NYSAWW for calendar year 2016 was $1,305.92.
Are there any circumstances under which paid family leave benefits would not be payable to an employee?
Yes. According to the PFLBL, benefits are not payable in the following circumstances:
If an employee is receiving total disability benefits under a claim for workers’ compensation, volunteer firefighters or volunteer ambulance workers’ benefits, they may not also claim PFLBL benefits. However, an employee may claim PFLBL benefits while receiving partial disability payments. The amount of PFLBL benefits plus those other benefits may not exceed the employee’s average weekly wage.
When an employee is not employed or is on administrative leave from his or her employment they may not claim PFLBL benefits.
When an employee is receiving sick pay or paid time off from the employer, they cannot also claim PFLBL benefits.
If an employee works at least part of the day, PFLBL benefits cannot be claimed during those hours in which the employee worked.
Employers should stipulate in their PFLBL policy, when spouses are employed by the same employer they cannot use PFLBL benefits at the same time to care for the same family member.
Before receiving PFLBL benefits, an employee must provide a notice to the employer and a medical certification. Employees may not receive PFLBL benefits for any period where the certification has not been filed.
Who pays for PFLBL benefits?
The program is intended to be completely employee-funded. Employees must contribute to the premium cost of an employer’s paid family leave insurance or the employer’s cost for self-insuring through payroll deductions. The amount of the deduction is determined annually by the Superintendent of Financial Services. The deduction is currently set at 0.126% of an employees’ weekly pay and is capped at 0.126% of the NYSAWW (currently $1.65 per week).
Can employees opt out of the program if they do not want to contribute or otherwise participate?
No, participation in the paid family leave program is mandatory and, aside from one exception, employees may not opt out. The only employees who may opt out are seasonal or temporary employees who have been hired for shorter periods of time than is necessary for them to be eligible to receive PFLBL benefits.
How do PFLBL benefits work in conjunction with other benefits or existing paid time off/vacation policies?
The law provides the following restrictions and guidance:
Employees who are eligible for disability benefits may only receive a combined amount of 26 weeks of disability benefits and PFLBL benefits in a 52-week period.
Generally, employers cannot require employees to take vacation and other paid time off at the same time as PFLBL leave. Employees may choose to do so in order to receive their full pay during periods of leave, but they cannot be required to do so. An employer can offer, and an employee can opt, to charge all or part of their PFLBL time to unused paid time off and receive their full salary. In this case, the employer may request reimbursement from its paid family leave insurance carrier by filing a claim for reimbursement prior to the carrier paying out the benefits.
Employers should require when PFLBL and FMLA apply, they will run concurrently. The employer must notify the employee that their time off is designated as leave under both PFLBL and FMLA, and provide the employee with the FMLA notice and certification forms.
Employees may not receive PFLBL benefits and New York State disability benefits at the same time.
What notice obligations do I have?
Employers must update their handbooks to include written guidance on the new law. The guidance must provide employees with an explanation of their rights and obligations under the law, including information on how to file a claim for paid family leave. Employers must also post a notice about the PFLBL in plain view where employees and applicants can readily see the notice.
Recommendations for Employers
Before the new law goes into effect, take final measures to ensure that you’re prepared to offer the required benefits. If payroll deductions have not already started, contact your payroll provider to ensure employee contributions will be deducted in the first paycheck of January, 2018. Confirm that your insurance coverage (through a carrier or through self-insurance) is in place. Review and revise current handbooks to ensure that proper PFLBL notices are included. While doing so, also review current leave policies to anticipate where PFLBL benefits may overlap with existing leave and benefit entitlements. Finally, provide training to human resources and other employees responsible for administering the PFLBL benefits so they are prepared to process requests and address questions from employees.
This article provides a broad overview of the Paid Family Leave Benefits Law. If you need further assistance coming into compliance with the new law, contact your legal counsel. If you do not have a legal counsel, contact Emina Poricanin at Hodgson Russ or our Business Advisory Services team can provide a referral.
About the Author
Emina Poricanin counsels public and private sector employers in all aspects of labor and employment law. She represents employers in arbitration proceedings and before the State Division of Human Rights, Equal Employment Opportunity Commission, and federal and state courts, and has worked on cases before the National Labor Relations Board, the Public Employment Relations Board, and federal and state Departments of Labor. Emina also counsels employers regarding the Family and Medical Leave Act, Americans with Disabilities Act, federal and state wage and hour laws, worker misclassification issues, discrimination laws, workplace policies and handbooks, discipline and discharge, union avoidance, and unemployment insurance.