Category: Paid Family Leave

Paid Family Leave Benefits

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!

Paid Family Leave

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!

Which Employees Are Eligible

Which Employees Are Eligible for New York Paid Family Leave?

The New York State Paid Family Leave Program takes effect January 1, 2018. All non-governmental employers will be covered. Public-sector employers will only be covered if they opt in. But not every employee will be entitled to take paid family leave. So, which employees are eligible?

(Watch my New York Paid Family Leave webinar and find out about the next one!)

Employees Whose Regular Schedule Is 20+ Hours Per Week

An employee who is regularly scheduled to work 20 or more hours per week becomes eligible when they have been employed for at least 26 consecutive work weeks preceding the first full day of family leave.

There are special rules for employees working in businesses that regularly hire workers from day to day and where the nature of employment has breaks at certain times of year (e.g., schools).

Employees Whose Regular Schedule Is Less Than 20 Hours Per Week

An employee who is regularly scheduled to work less than 20 hours per week becomes eligible when they have worked 175 days before the first full day the leave begins.

Impact of Other Leaves in Determining Which Employees Are Eligible

In determining eligibility for family leave, the use of scheduled vacation, personal, sick, or other approved leave time is counted as consecutive work weeks or days worked, if the contributions to the cost of family leave benefits have been paid for such periods of time.

However, periods of temporary disability taken pursuant to the New York Disability Benefits Law do not count. This includes both short-term disability leave and paid family leave.

Family Leave Waivers

Certain employees who are unlikely to become eligible for paid family leave may file waivers to avoid contributing to the cost of paid family leave benefits.

An employee may waiver coverage if:

  • Their employment schedule is 20 hours or more per week, but they will not work 26 consecutive weeks; or
  • Their regular work schedule is less than 20 hours per week and they will not work 175 days in a 52 consecutive week period.

Under the Workers’ Compensation Board’s final regulations, it now appears that employers are required to offer the waiver to employees who are eligible to waive coverage.

Employees who are eligible to file a waiver, but do not, must still contribute like other employees to the cost of paid family leave benefits through payroll deduction.

If the schedule of an employee who has filed a waiver changes, then their waiver may become invalid. This would occur within 8 weeks of any change in their regular work schedule that requires the employee to work for 26 consecutive weeks or 175 days in a 52 consecutive week period. If this happens, then the employee becomes subject to payroll deductions. The deductions may begin even before the employee would become eligible to take paid family leave.

Learn More

Employers will need to know more than which employees are eligible for paid family leave. They also need to know, for example, when eligible employees may take leave. Stay tuned for more posts about the New York Paid Family Leave Program.

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