On February 22, 2017, the New York State Workers’ Compensation Board
(“WCB”) published proposed rules on the New York State Paid
Family Leave Benefits Law (the “PFL”), which will require
private employers with one or more employees to provide eligible employees
with job-protected, paid family leave benefits, fully funded by employee
payroll deductions, beginning on January 1, 2018. The proposed rules clarify
certain provisions of the PFL and are open for public comment until April 8, 2017.
By way of background, the PFL – a series of amendments to the New
York State Workers’ Compensation Law – was enacted last year
when Governor Andrew Cuomo signed New York State’s 2016-2017 Budget,
and the law is scheduled to take effect on January 1, 2018. At such time,
eligible employees will be entitled to take 8 weeks of paid family leave
at a rate of 50% of their weekly earnings but not to exceed 50% of the
New York State average weekly wage. The PFL will be phased in over the
course of 4 years and, once fully implemented on January 1, 2021, covered
employees will be eligible to take up to 12 weeks of paid family leave
benefits at the lesser of 67% of their weekly earnings or 67% of the New
York State average weekly wage.
Similar to the federal Family and Medical Leave Act (“FMLA”),
eligible employees under the PFL may take leave for the birth or adoption
of a child or the placement of a child for adoption or foster care; to
care for a family member with a serious health condition; or for a qualifying
exigency arising when a family member is on or is called to active duty
in the U.S. armed forces. Notably, however, employees covered by the PFL
cannot take paid family leave for the employee’s own serious health
condition.
The PFL will apply to private employers that are subject to the New York
Workers’ Compensation Law – i.e., employers with one or more
employees. Covered employers will have to buy a paid family leave insurance
policy (likely through the State Insurance Fund or private carrier from
which the employer purchases its disability benefits coverage) or elect
to self-insure. The premiums are financed by deductions from employees’
wages, which, according to the proposed rules, employers may begin collecting
on July 1, 2017 (although employees cannot use paid family leave until
January 1, 2018).
The following are some of the other notable provisions of the proposed
regulations on the PFL:
- Full-time employees who have worked at least 26 weeks, and part-time employees
– defined as employees scheduled to work fewer than 5 days per week
– who have worked at least 175 days in a consecutive 52-week (1
year) period for a covered employer, will be eligible for paid family
leave. An employee whose regular work schedule does not meet the eligibility
requirements must be given the option to file a waiver of paid family
leave benefits, and thus will not have to make contributions to the plan.
Employers must keep a copy of the executed waiver on file throughout the
term of the employee’s employment to be produced at the request
of the Chair of the WCB.
- Eligible employees will be required to provide 30 days’ advance notice
to their employer if the qualifying event for taking leave is foreseeable,
such as an expected birth or planned medical treatment for a serious health
condition of a family member. If the qualifying event is unforeseeable,
employees must provide notice as soon as practicable.
- Covered employers must provide employees with written guidance regarding
their rights and obligations under the PFL, which includes instructions
on how to file a claim. Such notice can be provided in an employee handbook
or some other written policy or format. Covered employers will also need
to post in the workplace a printed notice in a form prescribed by the
Chair of the WCB in plain view where all employees and applicants can
readily see it.
-
Employees who are provided health insurance by their employers are entitled
to continued health insurance coverage during paid family leave on the
same terms as if the employee was still working, provided the employee
continues to pay his or her share of the health insurance premiums. A
covered employee must also be reinstated to his or her position, or a
comparable position (with comparable pay, employment benefits and other
terms and conditions of employment), with the employer upon return from
paid family leave.[1]
- In the event a period of paid family leave is concurrently designated leave
under the FMLA, the employer must notify the employee of such designation
and provide the employee with the required notice under FMLA regulations.
Otherwise, the employer will have been deemed to have allowed the employee
to receive paid family leave benefits without having concurrently used
his or her benefits under FMLA.
- If an employer gives its employees the option to use other employer-provided
paid time off in lieu of paid family leave (and thus receive their full
salary during such time off), the employer may file a claim request for
reimbursement for any family leave benefits due, or to become due, with
the insurance carrier prior to the carrier’s payment of the family
leave benefits.
Pursuant to the proposed regulations, claim-related disputes pursuant to
the PFL, including eligibility, benefit rates and duration of paid leave,
are subject to arbitration. The rules also provide for certain significant
penalties for violations of the PFL and non-compliance.
Employers should be on the lookout for the adoption of these proposed rules
following the comment period. At this time, employers may begin familiarizing
themselves with the PFL and the proposed rules and should consult with
employment counsel for review of their policies and practices to ensure
compliance prior to the PFL’s January 1, 2018 effective date.
For more information on the topic discussed, contact:
Joel A. Klarreich | 212-508-6747 |
jak@thsh.com |
: @staffing_lawyer
Andrew W. Singer | 212-508-6723 |
singer@thsh.com |: @employer_lawyer
Stacey A. Usiak | 212-702-3158 |
usiak@thsh.com |: @law4employers
Jason B. Klimpl | 212-508-7529 |
klimpl@thsh.com |: @HR_Attorney
*A special thanks to
Andrew Yacyshyn for his contributions
[1] There is no exception for “key” employees with respect to
job reinstatement under the PFL as there is under the FMLA.
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