Some states, such as Connecticut, provide for unpaid family and medical leave greater than that provided by federal FMLA. New York is about to join California in providing paid family leave.
Beginning on January 1, 2018, New York State will provide employee-funded paid family leave for qualifying employees. The New York State Paid Family Leave Benefits Law (PFLBL) provides full and part-time private sector employees with job-protected paid leave in certain situations after having worked for the employer for a specified period of time. Paid family leave will be covered by an employer’s disability insurance policy, and the premium for this coverage will be paid through employee payroll deductions. Although not yet required, employers have been permitted to take such deductions since July 1, 2017.
On July 19, 2017, New York State adopted final regulations further implementing and clarifying the PFLBL.
PFLBL applies to all private sector employers in New York State that have one or more employees subject to the law. PFLBL does not apply to public sector employers, including the state and its municipalities. Also exempt from the law are owners/shareholders of a corporation with no employees, owners/shareholders of partnerships, LLCs, or LLPs with no employees, individuals who employ personal or domestic workers that work less than 40 hours per week, self-employed individuals, and sole proprietors/members of an LLC or LLP.
An employee will be considered qualified to take leave if he/she is:
- a parent who within the last twelve months has given birth, adopted, or fostered a child;
- taking care of a close relative with a serious health condition; or
- the spouse, child, domestic partner, or parent of someone on active duty or on notice to be on call or ordered for active duty.
Employees will be eligible to take paid leave after they have worked for a certain period of time, depending on their work schedules. Employees regularly scheduled to work 20 or more hours per week are considered full-time employees under the final regulations and will be eligible after 26 consecutive weeks of employment. Employees who are regularly scheduled to work less than 20 hours per week will be eligible for leave as long as they have worked 175 days preceding the first full day leave would begin.
Foreign citizens and undocumented workers are also eligible for paid leave.
Benefits will be phased in over a four year period. For the first year of the program, employees may take a maximum of 8 weeks of paid family leave and be paid 50% of the employee’s average weekly wage for each of the eight weeks, up to a cap (presently $652.96/week).
The cap of the benefit amount will gradually increase over the next three years. As well, the length of paid leave granted will gradually increase until it reaches 12 weeks in 2021.
Under the newly issued regulations for the PFLBL, employers may permit employees to take sick and/or vacation time to supplement their paid leave so that the employee receives full salary for all or part of their leave, but cannot require employees to do so. However, if an employee is also eligible under the federal FMLA, the employer may pay out an employee’s accrued time off in accordance with the FMLA.
What Should You Do Now?
Though New York is joining other states that provide paid family leave, the PFLBL is among the most comprehensive in the nation. Among other things, employers should consider taking the following steps:
- Amend existing employee handbook policies to incorporate the requirements of the PFLBL.
- Contact disability insurance carriers and begin the process of incorporating paid family leave coverage.
- Commence payroll deductions in 2017 for the coverage that will be required in 2018.
Consider the application of the PFLBL to leaves under the Family and Medical Leave Act, and other leave programs, including those that relate to reasonable accommodations under the Americans with Disabilities Act, the New York State Human Rights Law, and New York City Human Rights Law.
Employers should seek legal counsel for guidance on how to implement the PFLBL, particularly in conjunction with other leave laws. More information on the PFLBL can be found here.