New Regulations Clarify NY’s Upcoming Paid Family Leave Benefits Law

10/23/2017 | By: Pamela Gallagher, Esq. | GDB 2017 Fall Newsletter

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New York’s Paid Family Leave Benefits Law, which takes effect on January 1, 2018, creates a new state insurance program funded by employee payroll de­ductions. The law requires all employers to permit New York employees to take a period of leave to bond with a new child, care for a family member with a serious health condition or address matters aris­ing from an immediate family member being called to active duty in the United States Armed Forces.
 
Since our previous reporting on this issue, the New York Workers’ Compensation Board recently issued regulations clarify­ing eligibility and benefits requirements.
 
Eligibility

The New York Paid Family Leave Benefits Law applies to nearly all New York em­ployees, whether full-time or part-time. All employees who are regularly sched­uled for 20 or more hours per week are eligible for paid leave benefits after 26 weeks of employment. Employees who are regularly scheduled for fewer than 20 hours per week are eligible after 175 days worked, irrespective of the number of hours worked on a given day. Because the benefit is employee-funded, all em­ployers, regardless of size, must offer paid family leave.
The law does not provide leave for an employee’s own health condition, but the employee may be entitled to leave or ben­efits under other programs, such as state disability insurance. Leave for one’s own health condition under other programs does not reduce the benefits available for paid family leave. Employees do not have to exhaust other leave options such as sick leave or vacation before using paid family leave. While an employee may be permit­ted to use sick or vacation leave for full pay, the employer cannot require an employee to use this leave.
 
In combination with New York disability benefits, employees cannot take more than a combined total of 26 weeks in any 52-week period. One caveat is that leave taken by an employee due to his or her own serious health condition under the federal Family and Medical Leave Act (FMLA) is not “family leave” and does not reduce the amount of paid family leave for which an employee is eligible. For ex­ample, a new mother may elect to take Family Medical Leave under the federal FMLA for maternity benefits, followed by the new program’s bonding leave. The difference is that the unpaid federal Fam­ily Medical Leave is for the mother’s own condition, while the Paid Family Leave Benefits are for bonding with the child.
 
If foreseeable, the employee must pro­vide the employer with 30 days’ notice in advance of taking leave. If the employee fails to do so, the employer may file a partial denial of the paid family leave claim for up to 30 days. If the leave is not foreseeable, the employee must notify the employer as soon as possible.

Benefits

Under the new program, an employee can take up to 8 weeks per calendar year in 2018, increasing to 10 weeks in 2019 and to 12 weeks in 2021. When the em­ployee returns to work at the end of the leave period, the employer has to restore the employee to his or her previous position or a comparable position.
 
An employee taking paid family leave will receive a percent of his or her regular wage during the leave, subject to caps. In 2018, the employee will receive 50 percent of the employee’s regular weekly wage, capped at 50 percent of the state’s average weekly wage. Based on 2016 figures, this calculates to a cap of $652.96, based on the state’s current average weekly wage of $1,305.92. The percent of the employee wage and the percent of the cap both increase to 55 percent in 2019, 60 percent in 2020, and 67 percent in 2021. Because the cap is based on a percentage of the state’s average weekly wage at that time, in future years, the average weekly wage may be higher than the current $1,305.92.
 
This program is paid for by increased em­ployee payroll deductions. For 2018, the amount to be deducted from employee payroll to pay for the program is 0.126% of an employee’s regular weekly wage, capped at the statewide average weekly wage. For 2018, that calculates to a maxi­mum of $1.65 per week. Employers are permitted to begin collection of the pay­roll deductions as of July 1 of this year, but employers are required to do so as of January 1, 2018. Going forward, the Superintendent of Financial Services will determine the following year’s rate on September 1.
 
Additional Employer Requirements

Employers are required to post a notice concerning the benefits and to give employees written notice of the benefits within five business days after the em­ployee takes such leave. Employers cannot take retaliatory action against employees who take leave.
 
For those who have more specific questions, there is a Paid Family Leave Helpline at 844-337-6303.