By Lisa M. Casa, Esq.
On January 1, 2018, New York’s Paid Family Leave law took effect. Eligible employees may now receive up to 8 weeks of leave and wage replacement benefits, equal to 50% of the employee’s average weekly wage, or the state’s average weekly wage, whichever is lower, and by 2021 eligible employees will be entitled to receive leave and payment benefits for 12 weeks at 67% of the employee’s average weekly wage or the state’s average weekly wage, whichever is lower. Leave benefits are administered through employers’ disability insurance policy, and employers are able to deduct each employee’s proportionate share of the premium payments, up to 0.126% of the employee’s weekly wage. Employers should audit their leave policies to ensure that they are in compliance with the law.
Which Employers Are Required to Provide The Benefit?
The first question to ask is whether your company is an employer who is required to provide employees with the leave benefit. Unlike the federal Family Medical Leave Act, which only covers employers with 50 or more employees, New York’s Paid Family Leave Law covers all “person, partnership, association, corporation, legal representative of a deceased employer, or the receiver, assignee or trustee of a person, partnership, association or corporation” with one or more employee. Excluded from these requirements are any municipal corporations, local government agencies, or other political subdivision or public authority. Accordingly, New York Paid Family Leave requirements extend to almost all private employers in New York State.
Eligible Employees
The next question to ask is which employees are eligible to take the family leave benefit. Again, unlike the federal Family Medical Leave Act, New York’s Paid Family Leave Law is more generous. For employees who are regularly scheduled to work 20 or more hours a week, they are eligible for this benefit after working for 26 consecutive weeks. For employees working less than 20 hours a week, employees are eligible after working 175 days.
Qualifying Events
Qualified employees may use the benefit to:
- Care for a child after birth, fostering or adopting, during the first 52 weeks after the child’s birth or in the first 52 weeks after placement;
- Care for a close relative (spouse, domestic partner, child, parent-in-law, grandparent and grandchild) with a serious health condition (an illness, injury, impairment, physical or mental, that involves inpatient care in a hospital hospice or residential healthcare facility, or continuing treatment supervised by a healthcare provider); and
- Active duty deployment for a spouse, domestic partner, child or parent.
The leave benefit cannot be used for the employee’s own military leave, or for their own serious health condition. Additionally, employees who receive remuneration from another source are not eligible to receive paid family leave benefits.
Benefits
The amount of the benefit is being phased in over four years, as follows:
| Year | # of Weeks Available | Max % of Employee Average Weekly Wage | Cap % of State Average Weekly Wage | ½ NYS Average Weekly Wage |
| 2018 | 8 | 50% | 50% | $652.06 |
| 2019 | 10 | 55% | 55% | TBD |
| 2020 | 10 | 60% | 60% | TBD |
| 2021 | 12 | 67% | 67% | TBD |
For example, in 2018, an employee who makes $1,000 a week would receive a benefit of $500 a week (50% of $1,000). Another employee who makes $2,000 a week would receive a benefit of $652.96 because this employee is capped at one-half of New York State’s Average Weekly Wage (NYSAWW) currently $1,305.92. Half of that amount is the $652.96 benefit.
The NYSAWW is determine on or about March 1 of every year after a comprehensive analysis is completed by the New York State Department of Labor.
Paid Family Leave and Paid Time Off
New York Paid Family Leave law permits an employee to use their paid time off while on leave, so that they may receive their full salary; however, unlike the FMLA, employees are not required to use any or all of their paid leave time while on paid family leave.
If any employer’s policy already provides that an employee will receive a full salary while out on family leave, or if an employee elects to use their paid vacation, sick, personal or other paid time off while on paid family leave, the employer may apply for reimbursements from the carrier providing the paid family leave benefits.
Administering the Benefit
When practical, employees should provide thirty (30) days’ notice of their intention to use Paid Family Leave. Employees wishing to use paid family leave, must complete a claims form provided by the employers’ disability insurance carrier. Employees are responsible for completing the claims form and providing all supporting documentation to demonstrate his/her eligibility to obtain paid family leave.
Health Insurance Coverage
While on Paid Family Leave employers must maintain the employee’s existing health benefits for the duration of Paid Family Leave as if the employee had continued to work. Employees are responsible to continue to make any contribution to the health insurance premium, which had been paid by the employee prior to the paid family leave period.
Dispute Resolution
Any claim-related dispute, including eligibility, benefit rate, and duration of paid family leave is subject to arbitration.
Collective Bargaining Agreement
For employees who are subject to a collective bargaining agreement, employees are not eligible for paid family leave benefits if they are entitled to receive benefits from a disability or other benefit fund that provides remuneration or maintenance in an amount equal to or greater than they would be entitled to receive under New York Paid Family Leave statute.
Reinstatement
Any eligible employee who takes paid family leave will be entitled, on return from such leave, to be restored to his/her position held prior to taking the leave or will be restored to a comparable position with comparable employment benefits, and comparable terms and conditions of employment. Employees will not accrue any seniority or additional benefits during the leave period.
Retaliation
Employers may not discriminate or retaliate against any employee and may not discharge or fail to reinstate any eligible employees who take the paid family leave benefit. Employees who feel that the employer has violated this section may bring a claim within two (2) years to the state Workers’ Compensation Board.
Employee Contribution
Employers may deduct up to 0.126% of each employee’s weekly wage to contribute to the premium payments for the paid family leave insurance. In no instance may the employees’ contributions exceed the premium cost of the paid family leave benefit.
Failure to Comply
If an employer does not comply with the provisions of New York’s Paid Family Leave Law, or fails to provide coverage for family leave benefits, a penalty shall be imposed on the employer, not in excess of a sum equal to one-half of a per cent of the employer’s weekly payroll for the period of such failure, and a further sum not in excess of 500 dollars.
Implementing the Paid Family Leave Law
Employers are advised to review their leave policies and employee handbooks to ensure that they comply with the new law. The law requires that employers provide their employees with written notice of the requirements of this new law, and, as such, updated New York Paid Family Leave policies should be distributed. Additionally, employers should reach out to the disability insurance carrier to ensure that they have appropriate coverage.
The attorneys in the Labor and Employment Department of Forchelli Deegan Terrana LLP are here to assist employers to assist in compliance with these new requirements.