United States: Winter Is Coming: Paid Family Leave Arrives In New York State

While New York State's Paid Family Leave Benefits Law (the PFL) becomes effective as we ring in the new year on Jan. 1, 2018, employers should spend the remainder of 2017 scrambling to determine how to minimize its disruptive impact and conform employee policies to be in accordance with the law. The Workers Compensation Board (WCB), the agency charged with enforcing the PFL, released final regulations implementing the law that provide some clarity and highlight top concerns for employers.

PFL Eligibility

Even if an employer is accustomed to adhering to the federal Family Medical Leave Act (the FMLA), the technical requirements and logistical obligations of the PFL are challenging. First off, virtually all employees are eligible to take PFL leave, regardless of the size of the employee population. With few exceptions, an employer of even a single employee must provide PFL leave to that employee after the person has been employed for 26 consecutive weeks. Part-time employees regularly scheduled to work fewer than 20 hours become eligible to take PFL leave after working 175 days (not including weekends or holidays).

PFL Leave Purposes and Employee Notice Requirements

The permitted purposes for taking PFL leave largely mirror the FMLA's purposes, except that employees may not use PFL leave to address their own serious health condition. Under the PFL, they may take leave:

• To care for a family member due to the family member's serious health condition.
• To bond with a newborn child during the first year of the child's life or first year of a child's placement for adoption or foster care with the employee.
• In connection with the process of placing or adopting a child if an absence from work is necessary for the placement to proceed.
• In the event of a qualifying exigency arising from service of a family member in the armed forces.

The PFL also expands family member coverage — in addition to spouses, children and parents, who are covered by the FMLA, the PFL extends coverage to domestic partners and grandparents.

Employees seeking to use PFL leave must provide their employer with at least 30 days' advance notice before taking leave for foreseeable events, such as a birth or a planned medical procedure. For unforeseeable events, PFL notice must be delivered as soon as practicable. The notice itself must contain information concerning the timing and duration of the leave and the type of family leave the employee is invoking.

Job Protection and Benefits During PFL Leave

The most challenging component of the PFL is that, regardless of the size of an employer's work force, an eligible employee is entitled to reinstatement in the same or a comparable position following the leave. Consequently, employers must tread very carefully when managing employees who are eligible for or have taken such a leave of absence.

The payments that PFL-eligible employees receive during a leave are based upon their weekly wages and capped at the state average weekly wage. The percentage of weekly wages provided and the amount of time an employee may take for such a leave will increase over the next several years based upon the following schedule:

FoFor example, the New York State average weekly wage in 2016 was $1,305.92 ($67,907.84 annual wages). Assuming that average salary remains consistent, in 2018 employees will be eligible for a maximum benefit of $652.96 each week for a total of eight weeks.

Unlike the FMLA, the PFL prohibits employers from requiring that employees use all accrued paid time off while they are out on a leave of absence. However, employers may permit employees to use such paid time off to supplement PFL benefit payments up to their full weekly wages.

Throughout the PFL leave, an employee is entitled to maintain employer-provided health insurance benefits, provided that the employee continues to pay the employee portion of any premiums.

Like New York State disability benefits, PFL is employee-funded via paycheck deductions. Employers were permitted to commence such deductions on July 1, 2017, but they become mandatory on Jan. 1, 2018 (unless an employer chooses to cover the contributions on behalf of employees). Unless they choose to self-insure, employers will also be required to purchase PFL insurance coverage, similar to disability coverage. Indeed, all short-term disability insurance providers must offer PFL coverage.

Interaction With Other Leave Entitlements

To the extent an employee is simultaneously eligible for FMLA and PFL leave, the employer may require that the leaves of absence run concurrently, provided that the employee receives the relevant notices for the leaves of absence and the employer designates the leaves accordingly.

Employees who are absent from work in connection with the birth of a child typically are eligible for short-term disability leave for a period of six or eight weeks. Because PFL does not cover personal periods of disability, short-term disability leave and PFL cannot run concurrently. Such an employee may elect to take disability leave in connection with her post-partum recovery for six or eight weeks and then take PFL leave for eight weeks (in 2018). However, because state disability leave provides only $170 per week, the employee may elect to forego her disability leave and instead invoke her PFL leave.

The law limits an employee's use of short-term disability leave and PFL leave to a combined total of 26 weeks in a 52-week period.

Key Issues for Employers to Keep in Mind

The following items are particularly important for employers to keep in mind:

• PFL may be taken intermittently throughout a 52-week period — meaning an employee who welcomes a child in January 2018 may take his or her eight-week PFL leave in intermittent one-day increments throughout the year.
• Even if an employee's child was born or placed for adoption or foster care in 2017, beginning on Jan. 1, 2018, and up to 12 months following the child's birth or placement, the employee may take PFL leave. This means that an employee who took a leave of absence in 2017 in connection with the birth or placement of a child, in accordance with FMLA or their employer's policies, may take an additional eight weeks of leave in 2018.
• Employers are required to provide employees with written guidance concerning employees' rights and obligations under the PFL. Such guidance must be in the employer's handbook, and if there is no handbook, it should be distributed to employees in another written format. The WCB will be providing a statement of rights that employers may distribute.
• The WCB will be issuing mandatory posters and forms for applying for PFL benefits.

To the extent that employers already have salary continuation policies that cover bonding with a child or other family-related needs, such policies must be revisited and modified to best address and coordinate with the PFL. Employers seeking assistance in complying with the PFL, minimizing its impact on the business or understanding its interaction with other leave laws should contact a member of the Kramer Levin Employment Department.

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.