If you are a new parent in New York, you are entitled to part of your normal compensation for missed work resulting from the birth of your child. New or expecting parents should view maternity leave and paternity leave in two separate phases: The first phase, often called pregnancy disability leave, arises under short-term disability law. This first phase provides compensation for the new mother when she is unable to work due to the physical act of childbirth. The second phase, often called parental leave, arises under a number of laws entitling both new mothers and fathers to part of their regular compensation. New parents receive parental leave so that they may enjoy time at home with their child without financial stress.
The first phase of parental leave provides new mothers short-term disability pregnancy insurance benefits as a result of the physical act of childbirth. The right to short-term disability coverage is guaranteed under a number of state and federal laws. These benefits range from receiving a portion of the mother’s regular pay to guaranteeing that her job will be there when she is ready to return to work. Because of the many overlapping laws, it is important to understand exactly what your employer must provide.
Under New York’s Temporary Disability Benefits Law, nearly every employer must provide paid short-term disability coverage for up to twenty-six weeks if an employee is unable to work due to disability. This coverage is purchased by the employer, on behalf of the employee, through an outside disability insurance company.
While most states have similar protections, New York, unlike most other states, includes pregnancy in the list of “disabilities” that qualify an employee for this insurance benefit. This means that New York new mothers are considered “disabled” for a period of time after childbirth and are entitled to short-term disability benefits if they are unable to work. Thus, compensation for short-term disability resulting from the physical act of childbirth is no different than if you were to break your arm, for example, and were unable to work.
The federal Family and Medical Leave Act (“FMLA”), explained in further detail below, is a federal law that applies to residents of all states. It also covers new mothers who are unable to work due to many reasons, including childbirth and pregnancy. The FMLA, however, does not provide for compensation to the mother during that time. Rather, the FMLA prevents your employer from firing you during this time and ensures that your medical insurance coverage will remain intact.
The Federal Pregnancy Discrimination Law does not itself entitle a new mother to short-term leave, but rather prevents her employer from discriminating against her because of her pregnancy. While discrimination comes in many forms, discrimination under this act can be summarized as follows: An employer must treat a pregnant employee in the exact same way they treat other employees. Accordingly, what a new mother can expect under this law will vary based on her employer. For example, if an employer gives time off for injuries (say, for example, time off in addition to the twenty-six weeks guaranteed by the New York Temporary Disability Benefit Law), such as a broken leg, that employer must give the same time off for pregnancy. If the employer pays for time off due to injury, it must also pay for time off due to pregnancy.
Paternity and maternity leave are different from disability leave discussed above. The difference is that they are not due to the mother’s pregnancy or childbirth. Rather, this time off is given so that mothers and fathers can stay home and enjoy time with their newborn. Because of this, parental leave lasts much longer than short-term disability.
This “second phase” will begin once the mother is physically able to return to work and is no longer eligible for short-term disability. Any benefits for new fathers will begin immediately after the child’s due date. These benefits also arise from both federal and state law. Therefore, it is important that New York mothers and fathers know exactly what they are entitled to after the birth of a child.
New mothers and fathers in New York State are entitled to salary replacement payments under the New York Paid Family Leave (“NYPFL”) while they are on paternity or maternity leave. This law is meant to make the life of a new parent easier as well as support new families following the birth of their child.
In New York, when you take paid family leave under the NYPFL, you are entitled to receive the lesser of 50% of your average weekly wage or the state’s average weekly wage. Both parents qualify to use this benefit so they can care for, or bond with, a child during the first twelve (12) months after the child’s birth. This benefit also applies to families who adopt or receive placement of a child in foster care.
The NYPFL also provides benefits beyond maternity or paternity leave. Time off under the NYPFL can also be used to provide physical or psychological care to a family member with a serious health condition; or to 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. This benefit under the NYPFL applies only to events occurring to the employee’s family members, however. This means that an employee may not take time off under the NYPFL for their own health condition or military event.
In addition to providing coverage for childbirth and pregnancy, the “FMLA” also provides parental leave for new mothers after childbirth. FMLA Parental Leave has significant limitations, however, compared to the more employee-friendly NYPFL in New York. First, the FMLA does not apply to all employers, as small employers are exempt. Second, the FMLA applies only to employees who work over a certain number of hours in a year. Third, the FMLA does not provide paid parental leave like the NYPFL does, but provides only unpaid leave. Despite the shortfalls of the federal medical leave act, FMLA is still an important benefit to New York parents who can use it in addition to their state benefits under the NYPFL.
Employers are also required to provide partial wage and income replacement, for a maximum of twenty-six (26) weeks, to eligible employees who temporarily cannot work due to a disability, including pregnancy. An eligible employee may collect up to 50% of her average weekly wages prior to going out on disability, up to a cap of $170 per week. Benefits are not payable for the first seven (7) days. An employee is entitled to coverage only for the time when she is unable to work due to her own pregnancy or medical condition.
An employee is entitled to short-term disability payments in New York if:
New York short-term disability benefits require a medical provider to give a written determination that an employee is unable to work due to his/her medical condition. Both the employer and the attending doctor need to sign this claim application form.
An employee who becomes disabled more than four (4) to six (6) weeks prior to giving birth or who continues to be unable to work more than four (4) to six (6) weeks after giving birth may have to submit additional medical documentation to support her claim. If you have problems determining the kind of benefits to which you are entitled and/or the documents you need to provide, contact Moshes Law for a free consultation. Experienced employment lawyers in NYC will discuss your options with you.
Employees cannot take short-term disability leave and leave under the NYPFL Law at the same time. However, if the employee qualifies for short-term disability (for example, a high-risk pregnancy), she may take short-term disability leave and then leave under the NYPFL Law once she is no longer disabled. Employees cannot take more than twenty-six (26) weeks of combined short-term disability leave and NYPFL Law in a 52-week period.
The FMLA guarantees an employee, male or female, who has worked at least 1,250 hours within the last year for a company with fifty (50) or more employees within a 75-mile radius the right to take twelve (12) weeks of unpaid, job-protected leave to recover from a serious medical condition — including pregnancy — or to care for a newborn, a newly adopted child, or a seriously ill child, parent or spouse. Under the FMLA, you have the right to take this 12-week unpaid leave every year and to have your health benefits maintained during your leave.
The FMLA also guarantees that at the end of the leave you have the right to return into the same position that you held prior to going on leave or another position with equivalent pay, benefits and other terms and conditions. Also, employees who are eligible for leave under both the NYPFL 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 leave under the NYPFL Law.
If your employer is refusing to provide you with leave guaranteed by the FMLA, you should contact a pregnancy discrimination lawyer in NYC right away. Experienced New York pregnancy discrimination lawyers at the Law Office of Yuriy Moshes will advise you on your current situation and recommend the best course of action to take.
If your leave under the NYPFL Law is foreseeable, you must give your employer 30-days advance notice so they can plan for your absence. If the event was not foreseeable, you must notify your employer as quickly as possible. You must fill out the Request for Paid Family Leave (Form PFL-1) and submit it to your employer. Once the employer completes the form, you must submit it, in addition with any supporting documentation, directly to your employer’s NYPFL Law insurance carrier. You can submit your request before or within thirty (30) days after the start of your leave. The insurance carrier must pay or deny your request within eighteen (18) calendar days of receiving the completed request.
To apply for short-term disability for maternity leave, you must submit Form DB-450, along with any additional documents, to your employer or insurance carrier within thirty (30) days of your inability to work due to a disability. The claim form requires a medical provider to provide a diagnosis and estimate a date upon which you will be able to return to work. If the insurance carrier or your employer (if it is self-insured) decides that your claim is not covered, it is required to notify you within forty-five (45) days. If this happens, you have the right to a review by the New York Workers’ Compensation Board (which oversees the state’s short-term disability program).
However, it is important to note that you may not preemptively file a claim for short-term disability because you will not be able to work due to childbirth or pregnancy conditions until you are actually unable to work. If you have difficulties filing a claim, or are afraid that your employer will deny you the benefits to which you are entitled, experienced employment lawyers from Moshes law are here to help you.
A: Short-term disability benefits for pregnancy work in the exact same manner as for other short-term injuries. Employers must have an insurance policy taken out on behalf of their employees. Many large employers provide short-term disability benefits for employees as an additional perk of the job. In New York, however, such coverage is legally mandated by law. In some cases, employers may choose to “self-insure,” but this is relatively rare and should not impact the benefits.
New York law also requires that pregnancy be qualified as one of the “disabilities” qualifying an employee for coverage under the plan. Within thirty days of actually being unable to work, you must file form DB-450 to the insurance provider or your employer. Additional medical information proving the disability may also be required. Additional filing considerations are provided above.
A: New York Paid Family Leave, the second phase of benefits, cannot start until after the child is born. Parents may elect to take leave at any time within twelve months of the child’s birth. This makes sense because the purpose of parental leave is for the parents to enjoy time with their newborn. Unfortunately, this is true even if the mother is experiencing medical issues due to pregnancy prior to her due date. Quite simply, paid family leave is not provided for pre-birth issues or other medical conditions. In the case of medical issues prior to birth, short-term disability benefits may kick in to provide coverage.
Paid family leave is also available for other reasons besides the birth of a child, such as families who adopt or receive placement of a child in foster care. Families who adopt or receive a child from foster care may take paid family leave prior to the arrival of the child in order to prepare.
A: Yes. Parental leave applies to both parents of the child. While parental leave does not start until after the child’s birth, parents may elect to take parental leave at any time during the twelve months after the child is both. This means that mothers and fathers can split up their parental leave. For example, the mother may take leave immediately after the child’s birth, and the father can take his leave once the mother is ready to return to work within a twelve month period.
A: The current maximum amount you will receive is 50% of your last eight (8) weeks average gross wages up to a maximum of $170 per week. Starting on the eighth (8th) day after you begin your disability you will begin receiving benefits. The first seven (7) days of disability are considered a waiting period where you will not receive your benefits. Thereafter, you receive benefit payments every two (2) weeks.
A: No, an employee is only entitled to short-term disability benefits due to one’s own pregnancy or medical condition, not to care for a new baby.
A: The NYPFL Law provides the lower of 50% of your 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. As of 2018, New York State’s average weekly wage is $1,305.92, meaning that maximum payout would be $652.96 per week. Over the next four years, though, the amount paid will increase – in 2019, you’ll get 55%; in 2020, it goes up to 60%; and in 2021, the program will top out at 67%.
A: The duration of your benefits depends on when your medical provider’s assessment of how long you will not be able to work due to your own medical condition/pregnancy/child birth. The maximum benefit anyone can receive under short-term disability is twenty-six (26) weeks in any 52-week period.
A: In New York, maternity leave is covered under the FMLA and the NYPFL Law. FMLA allows for twelve (12) weeks of unpaid leave after welcoming a new child through childbirth, adoption, or foster care. Under the NYPFL Law, employees may be eligible for up to eight (8) weeks of paid leave.
A: No. Under New York law, you can take your maternity/paternity leave in different increments. For example, you and your partner might decide to take turns caring for the baby, such that you switch off taking leave every four (4) weeks until you reach your maximum amount of leave. If your leave under the NYPFL Law is foreseeable, you must give your employer 30-days advance notice so they can plan for your absence. If the event was not foreseeable, you must notify your employer as quickly as possible.
A: If your employer is subject to the federal Family and Medical Leave Act (FMLA) and you have an event that qualifies for both FMLA and NYPFL Law, these benefits will generally run concurrently. So, let’s say you take eight (8) weeks of leave under the NYPFL Law, you can then take another four (4) weeks of unpaid leave under the FMLA. You can take both short-term disability and NYPFL, but not at the same time. For example, if a mother qualifies for short-term disability after giving birth, she can take short-term disability first and then leave under the NYPFL Law. You cannot take more than twenty-six (26) weeks of combined short-term disability and NYPFL in a 52-week period.
A: Yes, all income will be taxable and must be included in federal gross income. Premiums will be deducted from employees’ after-tax wages. That means that you’re paying for it, upfront and through taxes.
A: Yes, your employer must continue your health insurance while you’re out on leave on the same terms as if you continued to work. For example, if you currently contribute to your health insurance, you’ll have to continue paying your contribution while you’re out on leave.
A: Employees eligible for leave under the NYPFL Law are those who have worked for twenty (20) hours or more per week for twenty-six (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 NYPFL Law.
A: NYPFL is funded through employee payroll contributions. The maximum employee contribution is .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. Your paystub will show if these contributions are being withheld from your paycheck.
If you have been discriminated against because of your pregnancy, or your claim for benefits is unfairly denied, call us for a free consultation. The Law Offices of Yuriy Moshes represents victims of pregnancy discrimination in the greater New York City area including all the boroughs of New York City (Manhattan, Brooklyn, Queens, the Bronx and Staten Island) as well as Northern New Jersey, upstate New York, and Long Island.