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New York Paid Family Leave

By: Thomas S. Tripodianos
Published: June 2017

On April 4, 2016, Governor Andrew M. Cuomo signed into law the legislation enacting New York's Paid Family Leave program, the most comprehensive paid family leave program in the United States. Commencing January 1, 2018, all eligible employees will be able to take time off, while still being paid a portion of their income, to bond with a new child, care for a family member or handle personal matters arising from an immediate family member being called to active duty in the Armed Forces of the United States.

All employers are required to participate in the New York Paid Family Leave program. Upon the renewal of a business's statutory disability benefit, employers will be automatically billed for the New York Paid Family Leave program. Employers have the option to pay for these costs themselves, or they can issue a deduction from their employee's gross incomes. If an employer elects to delegate payment to its employees, the deduction will appear on the employee's pay-stub, which will look similar to a tax deduction.  An employer may continue to deduct a qualified employee’s contributions while the employee is on family leave.

Under the New York State Administrative Procedure Act, the proposed regulation is open for a second round of comments from the public.  This 30-day comment period will close on June 23, 2017.

Below are the highlights of the current proposed regulation:

  • A “covered employer” is any employer who employs one or more employees.  Sole proprietors and members of limited liability companies are considered “individual business owners,” so long as they are entitled to keep all the profits after taxes, are liable for all losses and do not have any employees.
  • An employee of a covered employer who works 20 or more hours a week becomes eligible for benefits after 26 consecutive weeks of employment. Any employee of a covered employer who regularly works less than 20 hours a week becomes eligible for benefits after the 175th day of employment.
  • Any employee taking weekly leave, regardless of their hours worked, is eligible for the maximum number of weeks of leave in a 52-consecutive week period.
  • Beginning in 2018 PFL will allow for a qualifying individual to receive 8 weeks off and 50% of their salary during their paid time off. In 2019, this number increases to 10 weeks and 55%. In 2020, the numbers will increase to 60%. Finally, in 2021, the numbers increase to 12 weeks and 67%.  
  • However, in all of these circumstances, the employee may not take home more than the maximum percentage of the NY State Average Weekly Wage. This time off can be used in consecutive weeks or spread out throughout a 52 week period.
  • PFL benefits are limited to family, and do not cover the employee’s own illness. It provides for leave for bonding with a child in the first 12 months after birth, placement in foster care or adoption, or to care for qualified family members who have a “serious health condition.” This means that some FMLA leave will not qualify for PFL, but PFL will most likely qualify for FMLA leave.
  • If an employee takes a designated FMLA leave for their own serious health condition, it does not reduce the amount of paid family leave an employee is eligible for.
  • If an employee refuses to apply for benefits for a qualified family leave under both FMLA and PFL, the employer and the carrier may charge the leave against the maximum duration of leave allowed, so long as the employer has notified the employee of their eligibility for both leaves.
  • An employer covered by the FMLA that designates a concurrent period of family leave under this regulation may charge an employee’s accrued paid time off “in accordance with the provisions of the FMLA”. 
  • When an employee takes intermittent leave, the employer is permitted to require that the employee provide notice before each day of leave taken.
  • Disability benefits do not run concurrently with PFL benefits. In essence, an employee can take short-term disability leave before PFL followed by using their PFL benefits.
  • The employer must continue to provide health insurance benefits while the employee is on leave if the employee receives their benefits through the employer. The employer also must reinstate the employee upon their return from PFL.
  • Any dispute brought by an employee, employer or carrier is settled through an arbitration system that is on a strict timeline to settle the disputes quickly.

If you would like more information regarding this topic please contact Thomas S. Tripodianos at TTripodianos@wbgllp.com, or call 914-607-6440.

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Please understand that this column provides general information only, and should not be construed as legal advice to anyone under any circumstances. The author reserves the right to modify any questions submitted so as to broaden their appeal. While we encourage you to contact us, you should not disclose to us any information that you consider confidential unless and until we have formally established an attorney-client relationship, and agreed to represent you in your particular matter. Citations to legal authority have been omitted.