Paid Family Leave - Horton Management Law

The New York State Workers’ Compensation Board has published several forms for use by employees making a paid family leave request. Employees will first be eligible for this leave beginning January 1, 2018. Here we’ll discuss forms and what they’ll mean for New York employers and employees.

If you’re just looking for the Paid Family Leave (PFL) forms themselves, you can find them here.

For more discussion about these forms and other PFL topics, check out this free webinar.

PFL Background

Under the New York Paid Family Leave Benefits Law, many employees across the state will be eligible for paid leave for these qualifying events:

Caring for a family member with a serious health condition.
Bonding with a child during the first 12 months after the child’s birth or placement for adoption or foster care, or to meet related adoption or foster care obligations.
“Qualifying exigencies” arising from a family member being on active duty or notified of an impending call to active duty in the U.S. Armed Forces.

Beginning in 2018, eligible employees may take up to 8 weeks of leave and receive up to 50% of their average weekly wage for any of these qualifying circumstances. By 2021, the benefits are scheduled to increase to 12 weeks of leave and up to 67% of the employee’s average weekly wage.

The pay component of the New York Paid Family Leave is an insurance benefit like the state’s short-term disability pay. Consequently, unlike the federal Family & Medical Leave Act (FMLA) where employers determine leave eligibility, the insurance carrier (or self-insured employer) decides whether employees qualify for New York Paid Family Leave. This means that once employees complete leave forms, they will submit them to the insurance administrator for review and processing.

Insurers can use their own forms and allow telephonic or Internet reporting, but they must also accept the forms issued by the Workers’ Compensation Board.

Request For Paid Family Leave (Form PFL-1)

This is the generic form to be completed by any employee seeking New York Paid Family Leave. It has two parts. Part A is for the employee to complete. The employer completes Part B.

Part A

Part A start with basic information about the employee: name, address, social security number, date of birth, telephone number, gender, and preferred language. Then there’s an option section where employees can identify their race, for research purposes.

The next section of Part A gets into the basis for the paid family leave request. Specifically it asks about:

Reason for PFL request?
Which family member (by relationship, not name) is involved?
Will PFL be for a continuous period of time and/or periodic? (Including listing applicable dates.)
If providing less than 30 days’ advance notice to the employer, please explain . . . .

Finally, Part A ends with several items about the employee’s employment. Among these questions is whether the employee has more than one employer and whether they are also taking leave from another employer. It also asks whether the employee is receiving Workers’ Compensation Lost Wage Benefits. The employee must sign at the end of Part A declaring, essentially, that they have made no false statements in the form.

Part B

Like the employee’s part, the employer’s part of Form PFL-1 starts with a basic information section. The employer must fill out: business name, address, FEIN, SIC code, and contact information.

The employer also must provide information about the employee’s employment: date of hire, occupation, and wage data for the past 8 weeks.

Then Part B shifts to information about the employee’s paid family leave request:

Whether the employer is requesting reimbursement for wages it paid.
Whether the employee has received benefits for paid family leave or NYS disability in the past 52 weeks (with details).
Is the employee taking FMLA leave concurrently with PFL?

The FMLA question could be tricky. When the employer completes this form, it may not yet know whether it will grant FMLA leave. Ideally, the form really should ask, “Is the employee requesting FMLA leave concurrently with PFL?”

The employer must also provide the name and contact information for its insurance carrier.

At the end of the form, the employer must confirm that the employee is eligible for PFL based on their schedule and number of days worked. This does not necessarily mean the employee’s situation qualifies them for leave. The insurer will make that decision.

Bonding Certification (Form PFL-2)

This is the form for employees making a paid family leave request to bond with a newborn, an adopted child, or a foster child.

After entering personal information, the employee must fill out information about the child, including:

Date of birth
Gender
Whether the child lives with the employee
Nature of relationship (biological child, stepchild, foster child, adopted child, legal ward, or spouse/domestic partner’s child)

Then the employee must identify what type of documentation they are submitting. The instructions indicate that employees generally should not send originals.

Here are the possible forms of documentation:

Health care provider certification of pregnancy (original letter required)
Health care provider certification of birth (original letter required)
Birth certificate
Voluntary Acknowledgement of Paternity
Court order of filiation
Marriage certificate
Civil union/domestic partner’s documentation
Foster care placement letter
Court documents of adoption
Other documentation, if none of the others apply

Again, the employee must sign declaring that all information provided is accurate.

The employer does not complete any portion of this form.

Release Of Personal Health Information Under The Paid Family Leave Law (Form PFL-3)

By default, neither the employee requesting leave, nor the employer complete most of this paid family leave request form. Rather, the family member the employee will be caring for (or an authorized representative) must complete it. Of course, the employee may be the one to complete the form if they are an authorized representative, for example as the parent of the patient.

The purpose is to enable the family member’s health care provider to complete another form, providing information about the patient’s medical condition to the employee and the PFL insurance carrier.

The form specifies that the release only covers information related to the family member’s current condition that is the subject of the employee’s paid family leave request. Interestingly, the form doesn’t require the family member to identify which medical condition that is.

The employee can revoke the release anytime. Otherwise, it automatically expires after one year.

Health Care Provider Certification For Care of Family Member With Serious Health Condition (Form PFL-4)

The employee puts their personal information on the form and gives it to the family member’s health care provider along with the release authorization. Interestingly, the employee is supposed to include their own social security number and date of birth. Some employees might be reluctant to provide this information if they don’t share the same doctor as their family member. It may be possible, as a practical matter, for the employee to add this information after receiving the certification back from the provider.

The health care provider completes most of this form.

The first question for the health care provider is “Does patient require care by the employee requesting Paid Family Leave (PFL)?” This seems like a question that the health care provider wouldn’t necessarily be qualified to answer. The form clarifies that “providing care may include necessary physical care, emotional support, visitation, assistance in treatment, transportation, arranging for a change in care, assistance with essential daily living matters, and personal attendant services.” But it’s unclear how the doctor would know in some cases whether the employee would have to be the one to provide such care. Regardless, it’s fair to assume many health care providers will readily mark “yes” for this item.

The health care provider then indicates the patient’s diagnosis (on one line) and timing information, including:

Date patient’s condition commenced
First date care for patient is needed
Expected date patient will no longer require care
Estimated number of days per week or days per month patient requires care

Overall, there is little space on the form for the health care provider to enter information about the patient’s medical condition.

The rest of the form is for additional information about the health care provider, who is then required to certify the accuracy of the completed form.

Military Qualifying Event (Form PFL-5)

This form is completed entirely by the employee making the paid family leave request.

As with the other forms, the employee must enter identifying information. Then they provide information about the proposed military qualifying event.

The employee must identify the covered military member by name, date of birth, gender, address, and relationship to the employee.

The form also asks about the dates of the active duty and requires the employee to submit one of these forms of supporting documentation:

Covered active duty orders
Letter of impending call or order to covered duty
Documentation of military leave signed by the approving authority for the military member’s Rest and Recuperation

The employee is also prompted to identify the reason the employee is requesting PFL. The employee may select one or more of the following:

Arranging for child care
Arranging for parental care
Counseling
Making financial arrangements
Making legal arrangements
Acting as military member’s representative before a federal, state, or local agency for purpose of obtaining, arranging, or appealing military service benefits
Attending any event sponsored by the military or military service organizations
Other

Notably, the form doesn’t require the employee to explain most of the above items. Nor is there is any guidance regarding what may qualify in the “other” category. That item does at least provide a box where it looks like an employee could add more information. The form’s instructions suggest the employee should provide more information in narrative form, but it’s not clear whether that’s necessary. It seems likely that many employees would take the path of least effort and simply check a box.

In addition to advising the employee to attach supporting documentation, there is a supplemental section to be completed if the leave if requested to meet with a third party. The form suggests: “The reason for a meeting can include: arranging for child or parental care, counseling, making financial or legal arrangements, acting as the military member’s representative before a federal, state or local agency for purposes of obtaining, arranging or appealing military service benefits, or attending any event sponsored by the military or military service organizations.”

Processing of Paid Family Leave Request Forms

Once completing all the paid family leave request forms, the employee submits them to the insurance carrier. There is no requirement that the employee provide copies to the employer. This could make it difficult for the employer to even predict the likelihood of the insurer granting the PFL benefits. Meanwhile, however, the employer has to either allow or plan for the employee’s leave in case it is approved.

The law seems to allow the insurer to discuss the information the employee provides with the employer. But it’s not clear whether it would be appropriate for the insurer to share information obtained from a family member’s health care provider. The release only specifically authorizes release (a) to the employee and (b) to the insurance carrier.

Upon receipt of the necessary paperwork, the insurance carrier has 18 days to pay or deny the claim. Employees can appeal denials through a process that can result in arbitration. Unless self-insured, the employer is not a party to that process. Nonetheless, the employer is responsible for permitting leave, reinstating the employee, and maintaining the employee’s group health insurance coverage, depending on the outcome of the PFL benefits claim.

Click here for more information about a New York Paid Family Leave webinar.

The New York Paid Family Leave Benefits Law takes effect January 1, 2018. Eligible employees will be able to take leave under qualifying circumstances. The law imposes notice requirements on both employers and employees. Failure to comply with these requirements can have serious consequences.

(Watch my recent Paid Family Leave webinar and sign up for the next one!)

General Employer Notice Requirements

Covered employers must post a notice that the employer has secured insurance coverage for Paid Family Leave Benefits. This is similar to the posting required for workers’ compensation insurance. The insurance carrier should supply this notice. It will need to be in place by January 1, 2018.

If the employer maintains written employee guidance regarding benefits or leave rights, such as in an employee handbook, then the employer must include information about paid family leave. This must include information about employee obligations.

An employer that does not have written guidance regarding employee benefits must provide written guidance to each employee about all of the employee’s rights and obligations under the New York Paid Family Leave Benefits Law. This must include information on how to file a claim for paid family leave.

Employee Notice Requirements

If the need for paid family leave is foreseeable, the employee must provide at least 30 days’ notice before the leave will begin. Foreseeable events include an expected birth, placement for adoption or foster care, planned medical treatment, or a known military exigency.

If the leave is not foreseeable, then the employee only has to provide as much notice as is practicable under the circumstances.

According to the applicable regulations, “as soon as practicable” means “as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.”

When an employee qualifies to take intermittent leave, the employer may require the employee to provide notice as soon as practicable before each day of intermittent leave.

In any case, employees do not have to give written notice to their employers. They also don’t have to specifically ask for paid family leave. Rather, the employee only has to give enough information “to make the employer aware of the qualifying event and the anticipated timing and duration of the leave.” The employer must ask for more information if necessary to determine whether the employee is seeking paid family leave.

Request for Paid Family Leave and Certification

Once the employer is aware of the employee’s potential leave, the employer will supply the employee with a Request for Paid Family Leave form. As with a disability benefits claim form, the employer will complete a portion of the Request for Paid Family Leave. The employee will complete the rest, including providing the appropriate certification based on the nature of the leave.

The insurance carrier or third-party administrator will then process the Request for Paid Family Leave. Unless self-insured, the employer will not determine whether the claim qualifies for benefits or not. This differs from the federal Family & Medical Leave Act, where the employer grants or denies the leave request.

Unfortunately, this creates a disconnect between the payment of leave benefits and the allowance of leave itself. The employer may have to, especially in the case of unforeseeable leave, allow the employee to take the time off before knowing whether the employee will ultimately receive benefits.

Disputes over eligibility for leave may result in arbitration between the employee and the insurance carrier or self-insured employers. Insured employers will not be parties to the arbitration, but may be directly affected by the outcome.

Learn More About the Paid Family Leave Benefits Law

Employers will need to know about more than just the notice requirements for paid family leave. You can also review my earlier posts on:

Stay tuned for more posts about the New York Paid Family Leave Benefits Program.

Remember, I will also be conducting webinars to assist employers with New York Paid Family Leave.

Find out about the free webinars here!

Category: Paid Family Leave

A Closer Look at the New York Paid Family Leave Request Forms