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Pregnancy and Maternity/Paternity Leave In New York

Author Yuriy Moshes

If you are a new parent and work in New York State, you are entitled to salary replacement payments under the New York Paid Family Leave Law (“NYPFL Law”) while out on paternity/maternity leave. This law is meant to make the life of a new parent easier as well as support new families in this most important time.

In New York, when you take maternity/paternity leave under the NYPFL Law, you are entitled to receive the lower 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, adoption, or placement with the employee in foster care. This leave thus can’t be taken until after the child is born, adopted, or placed.

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    Plus, the NYPFL Law is not only restricted to maternity/paternity leave. The NYPFL Law 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. However, leave under the NYPFL Law may not be used for an employee’s own serious health condition/pregnancy or qualifying military event.

    Who is Eligible to Receive Short-Term Disability Benefits for Pregnancy Leave?

    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.

    nys disability pregnancy

    An employee is entitled to short-term disability payments in New York if:

    • the employee has worked for a covered employer for at least four (4) weeks;
    • the employee changes from one covered employer to another covered employer. As long as the employee’s employment was continuous, coverage for short-term disability starts on the employee’s first day of work;
    • the employee is a domestic or personal employee who works at least forty (40) hours per week for one employer; or
    • the employee works for an employer who has voluntarily elected to provide coverage.

    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 will discuss your options with you.

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      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.

      What is the Family and Medical Leave Act (FMLA)?

      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.

      How to Apply for Leave under the NYPFL Law?

      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.

      How to Apply for Short-Term Disability 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.


      How do I get paid under short-term disability?

      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.

      Does short term disability cover maternity leave to care for a new baby?

      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.

      short term disability pregnancy

      How much I will be paid under NYPFL Law?

      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%.

      How long will I get payments under short term disability for pregnancy leave?

      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.

      How long you can take maternity leave?

      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.

      Do I need to take my maternity/paternity leave all at once?

      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.

      Can I combine my leave under the NYPFL Law with FMLA or any short-term disability benefits I may be entitled to?

      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.

      Is the leave pay taxed?

      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.

      Do I still receive my health benefits/insurance while I’m out on leave?

      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.

      Am I eligible for leave under the NYPFL Law?

      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.

      Who covers the cost of NYPFL?

      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.

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      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.

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