New York Employers Must Prepare for Paid-Family-Leave Program

Workers in the state will be eligible for job-protected leave beginning in January 2018

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New York will have one of the most comprehensive paid-family-leave programs in the country starting on Jan. 1, 2018, and employers should begin preparing soon for the change.

The Empire State will join California, New Jersey and Rhode Island in offering paid family leave that is funded through employee payroll taxes and administered by the state disability program.

[SHRM members-only toolkit: Managing Disability Benefits]

The final regulations for New York's program are still pending, so the guidelines that are currently available are based on the proposed regulations, employment attorneys told SHRM Online.

For now, employers should take an inventory of their leave policies, said Kristen Smith, an attorney with Bond, Schoeneck & King in Syracuse. Large employers might have numerous policies that address different kinds of leave, and they should pull them all together to see if the addition of this benefit will affect their policies or change what they want to offer in terms of voluntary paid-leave benefits, she noted.

Large and small employers alike need to review their policies. "Virtually all private employers in New York are covered," said Gena Usenheimer, an attorney with Seyfarth Shaw in New York City. "Any employer with one employee for each of at least 30 calendar days in a year is covered." 

Employers are supposed to start making payroll deductions for the fund in mid-2017, so they should talk to their payroll providers and ensure that appropriate processes are implemented to do so, said Amy Traub, an attorney with BakerHostetler in New York City.

Covered Leave

Full-time employees will be eligible for paid-family-leave (PFL) benefits after 26 weeks of employment, and part-time workers will be eligible after 175 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.

The definition of family is very broad, Smith noted. Family members include spouses, domestic partners, children, parents, grandparents and grandchildren.

She added that the new program doesn't cover time away from work for the employee's own serious health condition. "The idea is that New York state already has a disability program that covers an employee's own injury. This new program is meant to broaden the disability system and will run similarly."

Phased In

New York's PFL program will be implemented in four phases as follows:

 

Date

Weeks of Leave

Pay Recovered

Jan. 1, 2018

8

50 percent

Jan. 1, 2019

10

55 percent

Jan. 1, 2020

10

60 percent

Jan. 1, 2021

12

67 percent

 

Employers should note that 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.

"When fully implemented in 2021, eligible employees who work for a covered employer will be permitted to take job-protected leave for up to a maximum of 12 weeks in any 52-consecutive week period," Usenheimer said.

Traub noted that the 52-week clock will start on the first day the employee takes the leave.

She added that employers must maintain the employee's existing health benefits for the duration of the PFL as if the employee had continued to work. 

However, the law in and of itself doesn't entitle employees who take leave to continue to accrue benefits, such as sick or personal days, while out on leave, she said. "This also includes accrual of any seniority rights to which the employee may have been entitled if he or she did not take the leave."

If an employer already voluntarily provides paid time off that employees can use for whatever they want—like vacation or personal time—the proposed regulations say that the employer can't require employees to use that time for paid family leave, Smith explained. However, employees may elect to do so.

Notice Requirements

Employers and employees alike must adhere to certain notice requirements under the new program.

"Employers must provide employees with a written policy and conspicuously post a notice that will be published by the Workers' Compensation Board," Usenheimer explained.

Although the program will be funded by employees, businesses will need to purchase a paid-family-leave insurance policy, she added, noting that employers will be able to recoup the costs of premiums through the payroll deductions. 

Employees have some responsibilities under the new program, too. If the need for leave is foreseeable, workers must provide their employer with 30 days of notice before the leave starts. If it isn't foreseeable, notice must be given as soon as practicable. 

"As with other forms of protected leave, an employee need not specifically identify 'paid family leave' in his or her request for leave but rather need only provide the employer with enough information to be on notice that the leave is for a PFL-qualifying reason," Usenheimer said.

Next Steps

First and foremost, employers and HR professionals should be looking out for updates to the final status of the regulations, Usenheimer said.

"Employers should also begin discussing the scope and cost of paid-family-leave policies with insurance carriers," she added. "Once the regulations are finalized, employers should undertake a review of their policies and identify which, if any, will require revision to comply with PFL."

 

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