New York Paid-Family-Leave Final Regulations Are Available to Employers

New York employers need to be familiar with the final regulations implementing the state's paid-family-leave law (PFLL)—which will provide eligible employees in the state with paid-leave benefits beginning in January 2018.

The final regulations were adopted by the New York Workers' Compensation Board and published on July 19. The program will be funded through employee payroll deductions and administered by the state disability program.

Though the final version has some changes from proposed regulations that were issued in May, it retained the July 1 start date for employers to begin implementing payroll deductions for employee contributions under the PFLL, said Evandro Gigante, an attorney with Proskauer in New York City. That means employers may start making payroll deductions any time between now and Jan. 1, 2018—the date on which PFLL benefits become available to eligible employees, he explained.

Employers need to prepare now to track and administer a new leave type, said Francis Alvarez, an attorney with Jackson Lewis in White Plains, N.Y. "This is a big deal for all New York employers, and they need to get ready for it."

Alvarez said employers should start training their HR and benefits staff on the law's requirements because they will need to understand the many nuances of how it fits with Family and Medical Leave Act rights and company policies. HR professionals also need to become familiar with the forms that will be used to administer leave and decide who will be responsible for distributing them to employees, he added.

New Paid-Leave Eligibility

Employees who regularly work at least 20 hours a week will be eligible for paid-family-leave benefits after 26 weeks of employment, and employees who work fewer than 20 hours a week will be eligible after 175 work days. 

New parents can use the leave for baby bonding in the first year after a child's birth, adoption or foster placement. Employees can also use the paid leave when a family member has a serious health condition or is called to active military duty.

Family members under the new law include spouses, domestic partners, children, parents, grandparents and grandchildren.

The program will be implemented in four phases as follows:

The maximum benefit is capped at the rate that an employee earning the state's average weekly salary would receive through the program. For example, the benefit will be capped at 67 percent of the state's average weekly salary when the program is fully rolled out in 2021.

It is important to remember that leave for an employee's own illness is not covered by the PFLL, Gigante said. "Employees are precluded from receiving both PFLL benefits and leave for their own illness during the same period," he explained.

The regulations state that employees who take leave for their own illness and to care for a family member in the same 52-week period may only receive up to a combined total of 26 weeks of paid leave under state short-term disability and PFLL benefits. 

Regulations Provide Clarity

The final regulations offer clarity on the interaction between the PFLL and other paid-leave entitlements, such as the New York City Earned Sick Time Act (ESTA), Gigante said.  "The regulations permit an employer to offer—and the employee to elect to use—otherwise available and eligible paid time off concurrently with paid family leave in order to receive his or her full salary during the leave period," he explained. 

The final regulations confirm that if the rules governing an employee's use of sick time allow him or her to use the time off to care for a seriously ill family member (as does ESTA), an employee may elect to use such paid sick time concurrently with paid family leave and receive 100 percent of his or her salary during that period, he said, adding that an employer would then be entitled to request reimbursement from the carrier for the PFLL benefits that would have otherwise been paid to the employee. 

"Employers covered by the federal Family and Medical Leave Act (FMLA) should also note that when paid family leave is designated concurrently with FMLA leave, the use of available paid time off under an employer's policies may be governed by the FMLA rules, which permit an employer to require employees to use FMLA and paid time off concurrently," Gigante noted.

[SHRM members-only toolkit: Managing Family and Medical Leave]

Alvarez said the staff responsible for managing leaves will need to be trained to recognize when each distinct entitlement of the various applicable leave laws is in play.

"There are different standards for coverage and eligibility," he said. "The reasons why leave can be taken are similar but not the same."

There are different leave durations and different forms, for example, and FMLA is unpaid leave, he said. "These are the details of leave management that cause most of an employer's angst."

HR's Role

"In addition to consulting with counsel to ensure that they are familiar with the requirements of the PFLL, employers should contact their disability carriers to discuss adding PFLL coverage," Gigante said.

He noted that the regulations require employers to provide guidance to employees about the PFLL in a written policy or handbook.

"Employers should also continue to monitor developments from the Workers' Compensation Board, including on the issuance of a notice to be posted in the workplace concerning employees' rights under the PFLL," he said.

"Employers in other states should beware, as this may be the next wave of leave legislation," Alvarez said. "It is being driven by evolving societal norms about work/life balance and a movement for greater gender pay equity."

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