When New York’s Paid Family Leave Act (the “Act”) went into effect at the beginning of the year, many members of the business community expressed concerns about the financial and staffing burdens it poses, particularly for smaller employers. Thanks to a recent bill passed by the state legislature and awaiting Governor Cuomo’s review and signature, employers feeling the strain of this and other employee-friendly laws passed in recent years have something new to contend with: an amendment that will add paid bereavement leave to the Act.

For those not already familiar with the Act or in need of a refresher, it currently provides eligible employees with job-protected and partially-paid time off under three circumstances: (1) care for a seriously ill family member, (2) to bond with a newly born or newly adopted child, or (3) to take care of family matters when a family member in the military is called to active duty. Employees with a regular work schedule of 20 or more hours per week are eligible for leave after 26 weeks of employment, and those with a regular work schedule of less than 20 hours per week are eligible after 175 days worked. Benefits are provided through the employer’s disability policy and funded through payroll deductions. While on leave, employees are entitled to continuation of any health insurance benefits (provided any required employee contributions are paid). The amount of leave and corresponding monetary benefits are being phased in over a four-year period as follows:

Year Leave Entitlement Monetary Benefits
2018 8 Weeks 50% of average weekly wage
2019 10 Weeks 55% of average weekly wage
2020 10 Weeks 60% of average weekly wage
2021 12 Weeks 67% of average weekly wage

If the bill mentioned above is signed by the Governor, effective January 1, 2020 the death of a family member will become a fourth qualifying reason for which eligible employees may take leave under the Act. Many employers either already offer their employees paid bereavement leave or allow other types of paid or unpaid leave to be used for such purposes. However, relatively few offer what this amendment will provide if signed into law, which is 12 weeks of leave at 67% of the employee’s average weekly wage when fully implemented in 2021. Additionally, entitlement to this lengthy paid leave would apply not only in the event of the death of an employee’s spouse, domestic partner, child or parent, but also if the employee’s grandparent or in-law were to pass away as well. Employees would be required to provide notice of their need for leave “as soon as practicable,” and those already on leave for purposes of caring for an ill family member could use their remaining leave for bereavement purposes in the event of the family member’s death.

While the sponsors of this bill undoubtedly have their hearts in the right place, what has been proposed is extreme, particularly when compared to the bereavement law of Oregon, the only other state with a law that mandates such leave. In Oregon, employees who have worked the requisite number of hours are entitled to take up to two weeks of unpaid job-protected leave due to the death of a family member, up to a maximum of 12 weeks per year. Similar to the pending New York law, entitlement to leave applies to deaths involving a wide range of family members (including in-laws and grandparents). Given the much shorter amount of leave time provided under Oregon’s law, however, the impact upon employers in that state is significantly less than that New York employers are facing.

In conclusion, this new bill, while well-intended, fails to take into account the burdens it poses for New York employers already struggling to survive in one of the Country’s costliest states in which to do business. Hopefully the Governor will hear the concerns of the many business owners and business groups who have voiced opposition to the bill and modify it. As presently drafted, an employee who intensely dislikes their mother-in-law could use the occasion of her passing as an opportunity to celebrate with a three-month vacation and get paid two-thirds of their wages to boot. Surely, that is not what the lawmakers behind this legislation had in mind when this amendment to the Act was drafted.

Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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