Paid Family Leave Arrives Soon to New York

New York is about to have one of the most comprehensive paid-family-leave laws in the country. The benefits will be phased in starting on Jan. 1, 2018. Here's what employers need to know about the new law.

The New York Paid Family Leave Benefits Law (PFL) will initially require employers to provide eligible employees with eight weeks of paid leave at 50 percent of their salary. Upon completion of a phase-in of the law, as of Jan. 1, 2021, employers will have to provide up to 12 weeks of paid leave at 67 percent of an eligible worker's salary. Benefits will be capped at 50 percent of New York's average weekly wage (currently $1,305.92).  

[SHRM members-only resource: New York Labor and Employment Law Overview]

Coverage

Under the new law, employees may take paid family leave to:

• Care for a child within 12 months after birth, adoption or foster care placement.
  
• Care for a family member with a serious health condition.
  
• Relieve family pressure in the event of a qualifying exigency when a family member is called to active military service. 
  

The PFL generally applies to employees who work in New York (and no more than incidentally in another state). Full-time employees will be eligible for leave benefits after they have worked for 26 consecutive weeks. (Part-time employees who work fewer than 20 hours per week become eligible after working 175 days). Citizenship and immigration status do not affect an employee's eligibility for paid family leave.

The PFL applies to all private-sector employers regardless of size. Additionally, businesses with employees working in New York for 30 or more days in a calendar year must obtain PFL insurance coverage.  

It is important to note that family leave is a benefit for people who work in New York; it does not matter where the employer is headquartered or where the employee lives. 

For example, an employee who works from home in New York is covered even if the employer is located outside New York.

An employee who is required to travel occasionally into New York to perform duties, such as a salesperson, will not be considered a New York employee unless the employment is based in the state. Furthermore, an employer that is located outside New York doesn't need to cover employees who live in New York but work outside the state.

Employee Rights and Obligations

The employee must provide 30 days of notice of PFL if such leave is foreseeable; if it's not foreseeable, the employee must provide notice as soon as practicable.

During the leave, employers must maintain the employee's existing health insurance benefits, assuming that the employee continues to pay his or her portion of any premiums. 

Upon expiration of the family leave, employees are entitled to reinstatement in the same position that they held prior to the leave or a comparable position with comparable pay, benefits and other terms and conditions of employment.

Employers will be prohibited from retaliating against employees for exercising their right to take family leave.  

Enforcement

The New York State Workers' Compensation Board (WCB) is the agency charged with enforcing the PFL, and it has issued regulations implementing the law. Similar to state disability benefits, PFL will be employee-funded through paycheck deductions. Employers will be required to purchase PFL insurance coverage that is similar to disability coverage. 

In addition, the WCB has issued mandatory posters and a Request for Paid Family Leave and Certification form to use when applying for leave. WCB is also providing a statement of employee rights for employers to distribute. 

Handbook updates may also be necessary, as employers are required to provide written guidance to employees concerning their rights and obligations.

PFL claim disputes will be subject to arbitration pursuant to the state workers' compensation law. Employers who fail to comply with PFL will be subject to fines and other relief.  

Interplay with Other Benefits

In contrast to the federal Family and Medical Leave Act (FMLA), New York PFL:

• Applies to employers with as few as one employee.
  
• Extends coverage to domestic partners and grandparents.
  
• Prohibits employers from requiring that employees use all accrued paid time off while they are on leave.
  
• Doesn't apply to employees seeking leave to address their own serious health condition. 
  

If an employee is simultaneously eligible for FMLA and PFL, an employer may require that they run concurrently. As a result, it appears that a pregnant employee may take up to 12 weeks of FMLA leave, followed by PFL leave to bond with her child.  

Since employees seeking leave in connection with the birth of a child typically are eligible for short-term disability leave, an employee could choose to take disability leave following childbirth and then take PFL for baby bonding (although the total leave may not exceed 26 weeks in a 52-week period). Because PFL does not cover periods of personal disability, short-term disability leave and PFL cannot run concurrently. 

HR's Role

In anticipation of the new law, HR professionals are advised to review and update their leave policies to ensure that they comply with the PFL's requirements. They should work with payroll vendors or internally to make certain that the deduction for PFL is implemented. HR and other relevant staff should be trained on the details of PFL.

Employers should supplement their existing disability insurance policy to provide coverage for PFL or arrange for self-insurance. They should also post the required PFL notice issued by the WCB and inform employees about the new law prior to the Jan. 1, 2018, implementation. 

David C. Singer is a partner at Dorsey & Whitney LLP in New York City.

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