NY's Paid Family Leave Program

The law is similar to the federal Family and Medical Leave Act, except: 1) it applies to smaller employers; 2) employees ineligible for federal FMLA because of length of service may be eligible for State leave; 3) a portion of employee's wages are paid; and 4) the reasons for taking the leave are to care for a family member, not oneself. These differences are significant, because most employers will be covered even if they are not covered by the federal FMLA, and more employees will be eligible. The new paid family leave is available to employees who are qualified as discussed above, and who need the leave to bond with a new child (as distinguished from maternity leave/disability due to the health of the birth mother, which CAN be used consecutively), to care for a loved one with a serious health condition, or to help relieve family pressures when someone is called to active military service.

All insurance carriers who offer disability insurance are now required by New York State to offer the new paid family leave policy. All costs of the policy, however, are to be borne by the employee and are to be collected through a payroll deduction that was finalized by the State Department of Financial Services (DFS) in June.

Insurance Considerations

Payroll deductions were authorized to begin July 1. While not mandatory, initiating payroll deductions now is the recommended course of action. The policies will be billed by your carrier with your disability policy, and payment will be due up front as it is for comparable employee disability policies. That means that if you do not begin deductions now, you will be fronting the cost of the benefit in January when in fact the law explicitly places the cost of the leave policy on your employees.

Employers should contact their disability carrier to assure that they have the required policy, and also their payroll service to make sure the employee deductions are accurate and timely. While your carrier may not have the policy in place yet, you may nonetheless begin deductions so long as you keep the deducted funds designated specifically for the policy cost purpose. If you operate under a collective bargaining agreement, please speak with your union, as what is permissible may conflict with the new law.

Amending Your Employee Handbook

In addition to these preliminary mechanics of the new law, a written policy in your employee handbook is generally required, so it is not too soon for you to begin working on them. Some of the basic provisions that should be part of that policy include:

• Employees who work 20 or more hours a week become eligible for the paid leave after 26 consecutive weeks of work, regardless of the number of days worked per week. Employees working less than 20 hours a week become eligible after working 175 days. Once an employee becomes eligible, there is no waiting period for benefits.
• In January 2018, the benefit is 50% of the employee's weekly pay, capped at the State Average Weekly Wage, and then increasing incrementally to 67% by 2021.
• In January 2018, the benefit will be 8 weeks, increasing incrementally to 12 weeks by 2021. Leave is permissible to care for a family member in close and continuing proximity with a serious health condition (including a child, parent, grandparent, grandchild, spouse or domestic partner); to bond with a child as a result of birth, adoption or fostering; or for any qualifying exigency relating to a spouse, domestic partner, child or parent who is serving on active military duty.
• If the basis for Paid Family Leave overlaps with an FMLA basis, employers may designate the leave as concurrent.
• Eligible employees may take intermittent leave and receive paid benefits in increments as low as one full day.
• Birth mothers who qualify for disability may also take paid family leave, but they cannot collect payments from both at the same time in the post-partum period.
• Part-time employees will be eligible to receive a pro-rata portion of Paid Family Leave.
• Seasonal workers, hired for less than 12 weeks, may waive coverage and therefore the deduction, but all employees who may waive under the law MUST nonetheless be given the waiver form and be allowed to make the choice at that point.
• Eligible employees will be required to provide at least 30 days' notice of foreseeable leave.
• Medical certification is required for family leave, but a birth certificate or adoption papers are sufficient for bonding leave.
• Employee health insurance is protected during leave so long as the employee pays the employee portion of coverage; if it lapses, the employer must nevertheless restore the employee to coverage when the employee returns to work.
• Employers are explicitly prohibited from discriminating against employees for taking this leave, which means that they must be guaranteed job protection as well as the continuation of health insurance while on leave.

We conclude this discussion in next month's issue.

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Rachel Demarest Gold and Sharon Stiller are partners at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP.