New York passed the Paid Family Leave (PFL) law requiring ALL PRIVATE EMPLOYERS with one or more employees to obtain insurance under their disability insurance. The law offers up to 12 weeks of paid leave to care for a covered family member with a serious health condition, to bond with a child within the first 12 months of birth or adoption, or in situations where a covered family member is called to active duty in the military, starting in January 1, 2018.
Paid Family Leave Benefits Law
- Wage replacement for 8 weeks in 2018, increasing to 12 weeks by 2021;
- Job protection upon return from Paid Family Leave; and
- Continuation of health insurance while out on Paid Family Leave.
Although PFL does not go into effect until January 1, 2018, employers should be aware of the administrative and financial adjustments to their business practices and potential revisions to internal policies that the law will require. The PFL’s requirements should be considered well in advance of the effective date to ease implementation.
Costs to Employers
Employers are not required to directly fund any portion of the family leave benefit but are required to obtain insurance through either a private company or the state insurance program that covers both disability benefits and paid family leave.
The contribution amount will be set on or before June 1, 2017. Employers have the option to begin collecting employee contributions on July 1. Employees will be required to make contributions towards the cost of PFL insurance, beginning on January 1, 2018.
- Employer must Include Paid Family Leave information in their employee handbook or similar employee materials; and
- By January 1, 2018, display a poster regarding Paid Family Leave coverage in their place of business, similar to the poster required for Workers’ Compensation or Disability Benefits coverage. The employers’ insurance carrier will supply this poster.
NYS PFL Paid Family Leave Coverage
Employers who employ one or more employees on each of the last 30 days in any calendar year are required to carry PFL insurance.
Eligibility for PFL
Generally, employees are eligible to take PFL if they have been employed by a covered employer for 26 consecutive weeks. If the employee is working less than the employer’s normal work-week (e.g., regular part-time employees), then the employee is eligible to use benefits on the 175th day of regular employment. Unlike disability benefits, employees are not eligible for PFL after termination of employment.
Use of PFL
PFL provides that employees may take time off of work, up to a maximum of 12 weeks in a year, to:
- Care for a covered family member when the family member has a serious health condition;
- Bond with his or her child the first year of birth or adoption; or
- Spending time with a family member being called to active military service
A “covered family member” is a biological, adoptive, or foster child, the employee’s spouse or domestic partner, the employee’s parent (including parent-in-law, stepparent or guardian while the employee was a child), or grandchild and grandparent of the employee.
A “serious health condition” is a condition that involves inpatient care in a healthcare facility, continuing treatment, or “continuing supervision” by a healthcare provider.
“Continuing supervision” includes a period of incapacity which is permanent or long term due to a condition for which treatment may not be effective, and so need not be receiving active treatment by a healthcare provider.
No Double Benefits
The law provides that as a condition of taking PFL, an employer may offer an employee who has accrued but unused vacation or personal leave balances “to choose whether” to charge all or part of their family leave against their paid balances, and therefore receive full pay, or to receive PFL pay-out under the insurance policy.
Based on the wording of the statute, the law is ambiguous as to whether employer FMLA policies which require the use of all accrued but unused leave balances before taking unpaid leave, may violate PFL. We anticipate further guidance will be issued in advance of the law’s effective date of January 1, 2018.
Length of Leave
Similar to the minimum wage framework, the law provides an increasing scale for the amount of paid leave available to employees, not to exceed 12 weeks.
Disability leaves and leave taken under PFL, when combined, cannot exceed 26 weeks in any year. Further, FMLA leave and PFL must be taken concurrently.
|Effective Date||Length of Leave||Amount of Pay During Leave|
|January 1, 2018||8 weeks||50% of employee’s average weekly wage, but not more than 50% of the state average weekly wage|
|January 1, 2019||10 weeks||55% of employee’s average weekly wage, but not more than 55% of the state average weekly wage|
|January 1, 2020||10 weeks||60% of employee’s average weekly wage, but not more than 60% of the state average weekly wage|
|January 1, 2021||12 weeks||67% of employee’s average weekly wage, but not more than 67% of the state average weekly wage|
Employees that take PFL must be reinstated to the same position or a comparable position with comparable benefits, pay, and other terms and conditions of employment. Taking family leave may not result in the loss of any benefit accrued prior to the date the leave commenced. Similarly, for the duration of leave, an employer must maintain any existing health benefits of the employee as if the employee had continued to work for that entire block of time.
Employers are permitted to obtain proof of need for leave, in the form of notice and medical certification of the family member’s condition. Absent such proof, employers are empowered to request the family member submit to a physical examination by a qualified health care provider, to be paid for by the carrier. Proof of the leave is required within the period of actual family leave.
Additionally, where the need for leave is foreseeable, employees must provide employers with at least 30 days’ notice before the leave is to begin, or as soon as practicable.
Penalties for failure to provide required PFL include a maximum fine of a sum of .5% of the weekly payroll for the period of such failure and a $500 maximum fine to be paid into the state Uninsured Insurance Fund.
Planning for the Future
The Superintendent of Financial Services is empowered to delay the increases, length, and amount of the family leave benefit by one or more calendar years, if necessary due to economic conditions.
Whats your NYS Paid Family Leave readiness? To review our checklist and or additional details on this law, including a review of existing DBL policies please contact us at 855-667-4621 or email us a policy copy for immediate review.
Join us on the next Webinar covering NYS PFL belo.