NY Paid Family Leave to Apply to All Private Businesses, Regardless of Size

Garden City business and employment lawyerOn January 1, 2018, New York State’s Paid Family Leave Benefits Law (PFL) will go into effect. Under the legislation, PFL will be a mandatory benefit in New York that will provide paid time off to employees to bond with their new child, care for a seriously ill loved one, or to address family issues that may arise due to a qualifying military exigency, while protecting their employment. PFL is designed to phase in over four years, increasing annually in weeks available and max percentage of average weekly wage. 

Who does the Paid Family Leave Act apply to?

PFL applies to any employer who has to provide a short-term disability rider (DBL). Generally, this includes every full-time and part-time employee in private sector organizations with at least one employee. PFL covers employees who work a regular schedule of 20 or more hours per week after 26 weeks of employment. The legislation also covers employees who work a regular schedule of fewer than 20 hours per week after 175 days worked. PFL applies to eligible employees regardless of their citizenship or immigration status.
 
Exempt employers, such as public companies or those with seasonal employees, may choose to provide voluntary coverage. Businesses that have excluded classes of employees may extend DBL/PFL coverage on a voluntary basis. However, voluntary coverage cannot be decided on an individual basis, it must be extended to that entire class of employees.

What is the timeline for Paid Family Leave benefits?

Year Weeks Available Max % of Average Weekly Wage Cap % of State Average Weekly Wage

2018

8

50%

50%

2019

10

55%

55%

2020

10

60%

60%

2021

12

67%

67%

Under what circumstances may an employee take Paid Family Leave?

Maternity and Paternity Leave
PFL applies to women and men who are expecting, fostering or adopting a child. This provides the parent with time to care for their child without sacrificing their savings or employment. PFL only begins after birth and does not apply to prenatal conditions. A parent may take PFL anytime during the first 12 months following the birth, adoption, or fostering of a child.
 
Caring for a Close Relative with a Serious Health Condition
PFL provides the opportunity for New Yorkers to spend time with their close relatives who are facing a serious health condition, without sacrificing their economic security. The law defines a close relative as a spouse, domestic partner, child, parent, parent-in-law, grandparent, or grandchild. According to New York State, a serious health condition includes “an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential health care facility or the continuing treatment or supervision by a health care provider.” This includes eligible close relatives who live outside of New York State, as long as the employee is able to provide the medical certification.
 
PFL does not apply to cosmetic treatments, such as plastic surgery, unless it requires inpatient hospital care or complications develop. Unless a serious complication were to arise, conditions such as the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches (other than a migraine), routine dental or orthodontia problems, periodontal disease etc. are not considered serious health conditions that would qualify for PFL.
 
Military Exigency
If an employee’s spouse, child, domestic partner, or parent is on active duty or has been notified of an impending call or order of active duty, he or she is eligible for PFL. The PFL benefits cannot be used for an employee’s disability or qualifying military event. It must be used for the employee to care for their qualified loved one.
 

Do employees have to give notice of Paid Family Leave?

Yes, employees need to give 30 days’ notice for a foreseeable leave. Employers may start receiving PFL notices as early as December 1, 2017.
 

Can spouses take Paid Family Leave at the same time?

If two spouses have different employers, they may both take their PFL simultaneously. However, if the spouses are employed by the same employer, the employer may deny both spouses taking PFL simultaneously to care for the same eligible loved one, or to bond with a child.
 

Do employers have to pay Paid Family Leave?

No, the New York PFL benefit is fully-funded by employees. Employers may collect the cost of PFL through payroll deductions.
 

Do employees have to use their paid sick and/or vacation leave before using Paid Family Leave?

No, employees do not have to use their paid sick and/or vacation time before using PFL. An employer may allow an employee to use their sick and/or vacation leave to receive full pay, but cannot require an employee to use their paid time off.
 

Can employees keep their medical coverage while on Paid Family Leave?

Yes, employees will be able to retain their existing medical coverage while on PFL.
 

What steps must a New York employer take to meet compliance with the Paid Family Leave Act?

Under PFL, employers are required to do the following:

  • Add PFL to any written guidance for employees concerning employee benefits or leave rights, such as an employee handbook.
    • Those who do not have a written manual will still need to create a written guidance on PFL, including how to file a claim for PFL.
  • As must be done with a DBL, an employer must display and keep posted a printed notice concerning PFL as will be published by New York State later this year.
  • PFL provides job security for employees who are out on PFL, as was done under unpaid FMLA, but regardless of the size of the employer.
    • If an employer declines to reinstate an employee after returning from PFL, an employee may report the business to New York State. The employer is given 30 days to take corrective action or file a formal response to the employee’s claim.

If you are an employer and are looking for legal guidance when it comes to Paid Family Leave laws or another employer-employee regulation that impacts your business, it is important to consult an experienced business law attorney. The New York business law attorneys at Blodnick, Fazio & Associates PC are experienced handling employer-employee matters and are available to assist you with an employment law issue that arises so that you can concentrate on building a successful business. For more information or to schedule a consultation with our New York business and employment law firm, call (516) 280-7105 or fill out our contact form.

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