On July 19, 2017, the New York Workers’ Compensation Board (the “Board”) published its final regulations concerning the New York Paid Family Leave Benefits Law (“PFLB Law”). Pursuant to the PFLB Law, starting on January 1, 2018, eligible employees will be entitled to up to eight (8) weeks of paid family leave in any 52-week period. Further, paid family leave will gradually increase to up to twelve (12) weeks beginning January 1, 2021.
Eligibility for Paid Family Leave
Employees eligible for leave under the PFLB Law are those who have worked for 20 hours or more per week for 26 or more consecutive weeks. Employees who work on a part-time basis (fewer than 20 hours per week) will be eligible for paid family leave after 175 days worked. Furthermore, an employee who works outside of New York, and only incidentally works in the state, is not eligible for the benefits and protections of the PFLB Law.
Reasons to Use Paid Family Leave
Employees can take paid family leave under the PFLB Law to: (i) care for or bond with a child during the first 12 months after the child’s birth, adoption, or placement with the employee in foster care; (ii) provide physical or psychological care to a family member with a serious health condition; or (iii) attend to a qualifying exigency arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty in the U.S. Armed Forces, or has been notified of an impending call or order to active duty. However, paid family leave may not be used for an employee’s own serious health condition or qualifying military event.
Moreover, although the PFLB Law does not take effect until 2018, certain qualifying events that occur in 2017 will nonetheless entitle the employee to paid family leave beginning on January 1, 2018. For example, an eligible employee who gives birth on November 15, 2017, may use her full eight (8) weeks of paid family leave under the PFLB Law between January 1, 2018, and November 14, 2018.
Notice Required Before Taking Paid Family Leave
When the need for paid family leave is foreseeable, employees must provide their employees with no less than 30 days’ notice in advance of the date on which the leave is to begin. If the need for leave is not foreseeable, the employee must provide notice as soon as practicable.
Employee’s Payroll Contributions
Paid family leave will be funded through employee payroll contributions. Beginning on July 1, 2017, New York employers gained the right to start withholding and deducting the weekly employee contribution from payroll under the PFLB Law. The maximum employee contribution will be .126% of an employee’s weekly wage, up to and not to exceed the statewide average weekly wage (currently $1,305.92), which means a maximum weekly contribution of $1.63. Any amount that an employer withholds that exceeds the actual cost of the insurance policy or self-insurance program must be returned to the employee.
Employees who are not eligible for leave under the PFLB Law must be provided with the option of filing a waiver of paid family leave benefits, exempting non-eligible employees from having payroll contributions withheld from their wages. The waiver will be automatically revoked if the employee’s work schedule is changed such that the employee will work at least 26 consecutive weeks, or at least 175 days as a part-time employee.
Payments to Employees While on Paid Family Leave
While on paid family leave under the PFLB Law, employees will be entitled to receive the lower of 50% of their average weekly wage or the state’s average weekly wage. If an employee’s final week worked is a partial week, his or her average weekly wage should be calculated excluding the final week worked.
Similar to the FMLA, employees who take paid family leave under the PFLB Law are entitled to return to the same position they held before going on leave or a position comparable in benefits, pay and other terms and conditions of employment. Employers must also maintain employees’ existing health benefits while they are on paid family leave, and may require employees to continue to pay their share of health insurance premiums.
Relationship with FMLA, Workers’ Compensation, and Disability
Employees may not receive paid family leave benefits under the PFLB Law while they are also collecting workers’ compensation benefits or disability benefits. Also, employees who are eligible for leave under both the PFLB Law and the FMLA must take both leaves concurrently. However, employees may be eligible for more FMLA leave (up to 12 weeks a year) than paid family leave under the PFLB Law.
Employers that fail to collect employee contributions to provide paid family leave coverage or fail to provide coverage by purchasing insurance or self-insuring will be liable for payment of paid family leave benefits and will waive the right to collect employee contributions for that period.
Disputes relating to a claim under the PFLB Law will be subject to arbitration before the Board. However, before an employee may file a complaint of discrimination with the Board, he or she must first file a written request for his or her employer to come into compliance with PFLB Law. While there is no time limit in which to file this written request, the written request is a condition precedent to bringing a claim with the Board, and an employer’s response to the request (or expiration of 30-day time period) triggers an employee’s two (2) year statute of limitations period to file a claim with the Board.
If you need additional information with respect to the application of this new law, please contact the Law Office of Yuriy Moshes, P.C. to speak with a New York City employment attorney.