Category: Paid Family Leave

September 7, 2017

New York Paid Family Leave Notice Requirements

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!

August 29, 2017

What are the New York Paid Family Leave Benefits?

The New York Paid Family Leave Benefits Law takes effect January 1, 2018. Eligible employees will be able to take leave under qualifying circumstances.

This post discusses what leave benefits are available to employees who take leave under the New York Paid Family Leave Program.

(For more information about this topic, click here to watch a free webinar!)

How Much Pay Do Employees Receive?

The amount of leave and pay available increases over the next few years. It starts at 8 weeks and a maximum of 50% of the New York State average weekly wage in 2018.

It increases each subsequent year until reaching 12 weeks and 67% of the New York State average weekly wage in 2021.

The following chart shows the number of weeks and percentage of weekly wage available each year.

Year	Weeks Available	Max % of Employee Average Weekly Wage	Capped at % of New York State Average Weekly Wage
2018	8	50%	50%
2019	10	55%	55%
2020	10	60%	60%
2021	12	67%	67%

The 2017 New York State Average Weekly Wage is $1,305.92. With a 50% cap for 2018, the initial maximum paid family leave benefit will be $652.96.

Employees’ maximum paid family leave benefits may be limited by prior receipt of short term disability benefits. The maximum combined benefit period for New York paid family leave and short term disability benefits is 26 weeks in any consecutive 52-week period. Thus, for example, if an employee has already received 20 weeks of disability benefits in the past year, they would only be eligible for up to 6 weeks of paid family leave.

Health Insurance Continuation

Group health insurance benefits provided to an employee before taking paid family leave must be maintained during paid family leave.

The employee remains responsible for any health insurance premium contributions during the paid family leave.

Job Reinstatement

Covered employees who take paid family leave have the right to return to work at the end of the leave. The employee may be restored to either: the position the employee held when the leave began, or a comparable position with comparable employment benefits, pay, and other terms and conditions of employment.

If the employer refuses to reinstate the employee, the employee can file a request for compliance. If the employer does not then reinstate the employee to his/her satisfaction, the employee can file a complaint a complaint with the Workers’ Compensation Board (WCB).

In evaluating an employee’s complaint of failure to reinstate, the WCB “may consider whether the employer’s actions are related to the taking of family leave or if the employer’s actions would have affected the employee if he or she was not on family leave.” For example, if the employee would have been laid off anyway for economic reasons.

Other employer defenses include that the employee was not eligible for paid family leave in the first place, or that the employee falsified their claim for benefits.

Other Paid Family Leave Benefits

The taking of family leave also may not result in the loss of any employment benefit accrued before the leave began.

Additionally, the law generally protects employees from discrimination or retaliation for taking paid family leave. However, it does not entitle any restored employee to the accrual of any seniority or employment benefits during any period of leave, or any right, benefit or position to which the employee would have been entitled had the employee not taken the leave.

Learn More About the Paid Family Leave Benefits Law

Employers will need to know more than which employees are eligible, when they can take paid family leave, and what benefits they receive. They also need to know, for example, what notices employers and employees must give. Stay tuned for more posts about the New York Paid Family Leave Benefits Program.

Remember, I am conducting webinars to assist employers with New York Paid Family Leave.

Find out about the free webinars here!

August 24, 2017

When Can an Employee Take Paid Family Leave in New York?

The New York State Paid Family Leave Program takes effect January 1, 2018.

In an earlier post, I described which employees would be eligible to take paid family leave. This time, I’m writing about the circumstances when an eligible employee can take leave.

(Watch my FREE New York Paid Family Leave webinar!)

Caring for a Family Member with Serious Health Condition

Eligible employees may take leave to participate in providing care, including physical or psychological care, for a family member of the employee made necessary by a serious health condition of the family member.

Unlike the federal Family and Medical Leave Act (FMLA), New York’s Paid Family Leave Benefits Law does not apply to an employee’s own serious health condition.

Family Member

“Family member” means a child, parent, grandparent, grandchild, spouse, or domestic partner.

“Child” means a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or the person to whom the employee stands in loco parentis.

“Parent” means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.

“Grandparent” means a parent of the employee’s parent.

“Grandchild” means a child of the employee’s child.

“Domestic partner” includes a person at least eighteen years of age (other than a close blood relative) who is dependent upon the employee for support as shown by either unilateral dependence or mutual interdependence, as evidenced by a nexus of factors including, but not limited to, common ownership of real or personal property, common householding, children in common, signs of intent to marry, shared budgeting, and the length of the personal relationship with the employee.

Serious Health Condition

“Serious health condition” means either:

an illness, injury, impairment, or physical or mental condition that involves: inpatient care in a hospital, hospice, or residential health care facility; or
continuing treatment or continuing supervision by a health care provider.

The Workers Compensation Board’s paid family leave regulations define the components of serious health condition in much more detail.

I discuss this more in my paid family leave webinar.

Bonding with a New Child

Eligible employees may take leave to bond with the employee’s child during the first twelve months after the child’s birth, or the first twelve months after the placement of the child for adoption or foster care with the employee.

An employee may take family leave before the actual placement or adoption of a child if an absence from work is necessary for the placement for adoption or foster care to proceed.

An employee’s right to take family leave for a birth expires at the end of the consecutive 52-week period beginning on the date of the birth.

An employee’s right to take family leave for adoption or foster care expires at the end of the consecutive 52-week period beginning on the earlier of: (1) the date of the placement or (2) the date of the first day of leave taken in connection with the placement.

Note: beginning January 1, 2018, otherwise eligible employees may take family leave during the first 12 months after birth, adoption, or foster placement of a child, even if the birth, adoption, or placement occurred before January 1, 2018.

Arising Out of a Qualifying Exigency Related to a Family Member’s Active Military Duty

Eligible employees may take leave because of any qualifying exigency as interpreted under the FMLA, arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces of the United States.

The U.S. Department of Labor has identified nine categories of qualifying exigencies:

Issues related to short notice deployment
Attending military events and related activities
Certain childcare and related activities arising from the military member’s covered active duty
Certain activities arising from the military member’s covered active duty related to care of the military member’s parent who is incapable of self-care
Making or updating financial and legal arrangements to address a military member’s absence while on covered active duty
Attending counseling for the employee, the military member, or the child of the military member when the need for that counseling arises from the covered active duty
Taking up to 15 calendar days of leave to spend time with a military member who is on short-term, temporary Rest and Recuperation leave during deployment
Certain post-deployment activities within 90 days of the end of the military member’s covered active duty
Any other event that the employee and employer agree is a qualifying exigency

Learn More About New York Paid Family Leave

Employers will need to know more than which employees are eligible and when they can take paid family leave. They also need to know, for example, how much leave is available and what notices employers must give to employees. Stay tuned for more posts about the New York Paid Family Leave Program.

Remember, I am conducting webinars to assist employers with New York Paid Family Leave. Watch the first webinar here and get more information about the next one!