NY Workers’ Compensation Board Finalizes Paid Family Leave Regulations

As we previously reported (June 6, 2017), beginning January 1, 2018, private sector employees in New York State who meet the minimum employment-duration requirements will be eligible for paid family leave under New York’s Paid Family Leave (“PFL”) law. The PFL program will be funded by employees via mandatory payroll deductions – tacked onto existing disability benefits deductions – beginning in July 2017.

On July 10, 2017, the New York State Workers’ Compensation Board adopted the final PFL regulations, which are available at http://www.wcb.ny.gov/PFL/pfl-regs-text.jsp. A summary of several key provisions is below.

Who Is Covered by the Law?

The law applies to all private employers. Unlike the federal Family and Medical Leave Act (FMLA), there is no minimum number of employees required to be subject to the law.

An employee whose regular work schedule is at least 20 hours per week becomes eligible for paid family leave after 26 consecutive weeks of work.

An employee whose regular work schedule is less than 20 hours per week becomes eligible for paid family leave on his/her 175th day of work.

An employee may optionally file a waiver of family leave benefits if he/she: (1) has a regular work schedule of 20 or more hours per week but will not work 26 consecutive weeks; or (2) has a regular work schedule of less than 20 hours per week and will not work 175 days in a 52-week consecutive period.

Under What Conditions Can an Employee Take Paid Family Leave?

As indicated by the name, this law applies to family-related events, and not to medical conditions or disabilities affecting the employee himself/herself. Specifically, this law allows paid leave under the following circumstances:

1. To provide care to a close relative with a serious health conditionThis includes care for a spouse, domestic partner, child, parent, parent-in-law, grandparent or grandchild. A serious health condition is an illness, injury, impairment or physical or mental condition that involves: (i) inpatient care in a hospital, hospice or residential healthcare facility; or (ii) continuing treatment or continuing supervision by a healthcare provider.
2. To bond with a newborn child within the first year after birth (or, in the case of adoption or foster placement, within a year after adoption or placement)Note that this does not apply to pregnancy but rather to post-birth bonding.
3. When a spouse, child, domestic partner or parent is on active military duty or has been notified of an impending call or order of active duty

This is consistent with the corresponding military service provision of the FMLA.

What Is the Length of Paid Time Off Allowed?

The law incrementally increases the paid family leave allowance between 2018 and 2021 as follows:

2018: 8 weeks
2019: 10 weeks
2020: 10 weeks
2021: 12 weeks

These periods of leave are calculated in any given 52-week period, beginning on the date leave is first taken. Note that PFL leave runs concurrently with FMLA leave unless the employer’s policy states otherwise.

An employee’s maximum combined disability and paid family leave benefits in a year is 26 weeks.

Compensation and Benefits During Leave

Compensation to employees during paid family leave is paid from the employer’s disability policy. The premiums are funded by employees via mandatory payroll deduction.

The compensation paid to employees during paid family leave incrementally increases between 2018 and 2021 as follows:

2018: 50% of employee’s salary, capped at 50% of the state average weekly wage
2019: 55% of employee’s salary, capped at 55% of the state average weekly wage
2020: 60% of employee’s salary, capped at 60% of the state average weekly wage
2021: 67% of employee’s salary, capped at 67% of the state average weekly wage

An employer may permit – but may not require – an employee to use paid time off or sick time during the leave in order to receive his or her full salary during this period.

Additionally, the employer must continue to provide the employee’s existing health insurance benefits during the leave, and the employee must continue to make any normal contributions to premiums.

Upon return from leave, the employee must be reinstated to the same or a comparable position.

Additional Employer Obligations

Employers must post a PFL notice in plain view of all employees and applicants. The Workers’ Compensation Board will provide more information regarding the form of the notice.

An employer that has a handbook, policies or other written guidance addressing benefits and leave must update same to include information concerning paid family leave. If the employer does not currently have these, it must provide written guidance to employees concerning their rights and obligations under the PFL law.

If employees’ PFL contributions exceed the employer’s annual premium for providing PFL benefits, the employer must promptly return the surplus to employees.

Employer Preparation

In advance of the January 1, 2018 effective date, employers should review and modify their leave policies as necessary and ensure that management is familiar with their new obligations. While the above highlights key areas of the new law, it is not intended to address every aspect and employers should consult with their labor and employment counsel to ascertain compliance and address any questions specific to their leave policies.