Most employers within New York State are familiar with the Family Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees with unpaid, job-protected leave for specified family and medical reasons, and also to continue the employee’s group health insurance coverage under the same terms and conditions as if the employee had not taken leave. However, some employers may not be aware that on April 4, 2016, New York State enacted a family leave law of its own; the New York Paid Family Leave Benefits Law (NYPFL).
The NYPFL is similar in some ways to the FMLA, and in other ways it is quite different, not the least of which is the fact that this state law and related program – as its name implies – provides paid leave benefits to eligible employees. The program also differs from the FMLA in that it is funded entirely through employee payroll deductions. While the law technically does not go into effect until January 1, 2018, it permits employers to begin making payroll deductions as of July 1, 2017. Thus, if your company hasn’t yet prepared for this important new law, now is the time to do so.
Who is Eligible to Take Leave?
To be eligible for benefits under NYPFL, an employee must have worked for a New York employer of one or more employees for 26 weeks full-time or 175 days part-time. This differs markedly from the FMLA, which requires that the employer have 50 or more full and/or part-time employees who work within a 75 mile radius, that the employee has been employed for at least 12 months, and that the employee has worked for at least 1,250 hours during the 12 month period immediately preceding the leave.
Leave under the NYPFL is available for employees that need to take time off:
- to care for a newly-born or newly-adopted child, or a newly-placed foster child;
- to care for a close family member with a serious health condition; or
- to assist a family member called to active military service.
Notably, unlike the FMLA, the NYPFL does not permit employees to take leave to care for their own health conditions. It is permissible to designate leave as both FMLA (assuming the employee is eligible under FMLA) and NYPFL leave if both laws cover the condition that prompted the leave – however, that’s not the case if one law applies and the other doesn’t. For example, if an employee takes time off to care for a spouse following surgery, the leave can be designated both FMLA and NYPFL leave since both laws cover that situation. If on the other hand the employee takes time off because she is pregnant, only the time off due to the pregnancy counts as FMLA leave, since NYPFL doesn’t cover the employee’s own health conditions. The employee under such circumstances can take up to 12 weeks of leave under the FMLA due to the pregnancy, and then additional leave under the NYPFL to care for her new baby.
It should be noted that the NYPFL establishes minimum leave benefits for New York employers. If an employer already has established paid family leave policies that meet or exceed what the NYPFL offers, the employer is deemed compliant with the law, and its employees are not entitled to additional benefits above and beyond what the employer already provides.
Who is Not Eligible to take NYPFL Leave?
Any employee receiving short-term disability, workers’ compensation benefits, volunteer firefighters’ benefits, or volunteer ambulance workers’ benefits are among those who are not eligible for NYHPFL benefits. This list is not exhaustive.
What are the Benefits to Which the Employee is Entitled?
NYPFL benefits begin on January 1, 2018 and will be phased in over a four-year period. For 2018, employees are entitled to a maximum of eight weeks of leave, paid at 50% of the employee’s average weekly wage, or 50% of the state average weekly wage, whichever is less. By 2021 when the program is fully phased in, employees will be entitled to 12 weeks, paid at 67% of the employee’s average weekly wage, or 67% of the state average weekly wage, whichever is less.
How Does an Employee Request NYPFL Benefits?
Similar to the FMLA, notice of not less than 30 days must be given if the need for leave is foreseeable (such as post-pregnancy child care), or otherwise as soon as practicable (such as to care for an injured parent). Proposed regulations contemplate that the employee is to submit his or her leave request directly to the insurance carrier administering the employer’s family leave plan.
What if the Employee is Entitled to Other Paid Time Off?
If an employee has “banked” personal days and/or vacation days, the employee may be given the option of using that time, or the employee may supplement his or her NYPFL pay with accrued paid time, such that the employee receives full pay during the leave period. An employer may not, however, require an employee to use or exhaust banked time prior to applying for NYPFL benefits.
Who Pays for NYPFL?
The NYPFL is administered through the employer’s disability policy, and paid for with weekly payroll deductions from its employees’ earnings. The maximum employee contribution will be established each year by the New York State Department of Financial Services. The current contribution rate is set at 0.126% of an employee’s weekly wage, up to a maximum of $1.63 per week (0.126% of the statewide average weekly wage of $1,296).
What Obligations does an Employer Have to an Employee on Leave?
Like the FMLA, employers are required to maintain any existing health benefits the employee had prior to taking leave, and following the leave the employee must be restored to his or her prior position, or a position with comparable pay and benefits.
Additionally, the taking of leave cannot operate to reduce any benefits the employee previously accrued (such as personal or sick days). However, that’s not to say that employees accrue such benefits while on leave and not working; they do not.
Lastly, like most laws, this one has a posting requirement. Notice of the law must be posted in the workplace, and if a large number of employees do not speak English, the posting must be in their native language.
What Should Employers be Doing Until Such Time as the Law Formally Takes Effect?
As I mentioned above, while the law does not go into effect until January 1, 2018, employers may start funding the program by making payroll deductions as of July 1, 2017. Now is the time to take the necessary steps so that when January 1st rolls around your company is prepared to meet the NYPFL’s requirements. First, you should work with your payroll company and/or accounting department to set up the necessary payroll deductions. Second, you should update your company’s short-term disability policy to provide coverage for the NYPFL (unless your company plans to self-insure). Third, personnel manuals and policies need to be reviewed and updated to inform employees of their rights under the NYPFL, and procedures for claiming benefits. Lastly, supervisory employees with authority to make leave decisions need to be fully familiarized with the NYPFL, and how it differs from the FMLA. As always, if you have questions about your company’s obligations pursuant to any of the many employment laws on the books, I recommend you speak to your attorneys and/or financial advisors for guidance.
Roberta C. Pike, Esq., Kenneth R. Tuch, Esq. and Laurence I. Cohen, Esq. are partners with Pike, Tuch & Cohen, LLP, with offices located at 1921 Bellmore Avenue, Bellmore, New York 11710. The firm specializes in commercial and employment litigation, including misclassification, wage and hour, employment practices, franchising and business practice matters, and transactional matters. The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.