As of Jan. 1 of this year, New York joined several other states that offer paid family leave benefits for employees. Currently, the New York Paid Family Leave Law (PFLL) provides eligible employees with eight full weeks of job-protected paid family leave to bond with a newly born, adopted or fostered child; care for a family member with a serious health condition; or assist loved ones when a family member is called to active military service abroad. The benefit amount and length of the leave will increase gradually through 2021.

Employees with a regular work schedule of 20 or more hours per week are eligible after 26 consecutive weeks of employment. Those with a regular work schedule of less than 20 hours per week are eligible after 175 days worked. Employees who will not meet the time-worked requirement for eligibility (e.g., certain temporary employees) may waive coverage via opt-out waiver forms.

The benefits are funded through employee payroll deductions, and the 2018 payroll contribution is 0.126 percent of an employee's weekly wage and is capped at an annual maximum of $85.56. If an employee earns less than the New York State Average Weekly Wage ($1,305.92 per week), they will have an annual contribution amount less than the cap of $85.56, consistent with their actual weekly wages. The New York State (NYS) Department of Financial Services will reset the employee contribution rate annually. However, an employer may choose to pay for the PFL benefit on behalf of its employees.

Employers with existing family leave policies should coordinate the PFLL with existing paid leave policies, if any. If an employee has an event that qualifies for leave under both the PFLL and the Family and Medical Leave Act (FMLA), and the employer is covered under both laws, the leave may be taken concurrently, so long as the employer notifies the employee that the leave qualifies for both FMLA and PFLL and that it will be designated as such. One important distinction between the FMLA and the PFLL is that an employee may not use leave under the PFLL for an employee's own serious health condition. For the same reason, employees cannot take short-term disability and PFL at the same time. However, if the employee qualifies for short-term disability (for example, after giving birth), they may take short-term disability and then PFL. But employees cannot take more than 26 weeks of combined short-term disability and PFL in a 52-week period. Likewise, if an employee is collecting workers' compensation for a total disability, they cannot take PFL. If they are on a reduced earnings schedule, they may still be eligible for PFL.

The law further provides that employees may choose to supplement PFLL benefits, up to their full salary or wages, by using any form of accrued or allotted paid time off, consistent with their employer's policies, while on leave under the PFLL. If an employee chooses to take advantage of an employer's paid-time-off policy at 100 percent of his or her salary instead of receiving the benefit available under the PFLL, the employer may request reimbursement from its carrier of any benefits due to the employee. Employers may not, however, require employees to exhaust all available paid time off under other policies prior to using paid leave under the PFLL.

If they haven't done so yet, employers should take the following steps to prepare to comply with the PFLL:

  • Ensure your company has PFL coverage. If you have not yet done so, contact your broker or insurer for information about available policies and about paying your premium. If you are self-insured for disability, you should purchase a separate PFL policy or apply to the NYS Workers' Compensation Board to self-insure.
  • Unless you are paying for these benefits on behalf of your employees, make appropriate deductions from employee paychecks to pay for this insurance, and notify your employees in writing before withholding any such contributions.
  • Inform ineligible employees about waivers.
  • Post a Notice of Compliance for employees, which should be provided to you by your carrier.
  • Update existing handbooks and policies concerning the PFLL, or create written guidance for employees regarding the PFLL.

Become familiar with the law. Visit New York's website dedicated to the PFLL, which provides answers to frequently asked questions

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.