Category: Paid Family Leave

New York Paid Family Leave Program

New York Paid Family Leave Regulations Now Final

On July 19, 2017, the New York State Workers’ Compensation Board finalized its Paid Family Leave regulations. With the final regulations in place, employers should start preparing for the January 1, 2018 effective date.

As previously discussed, employers can already begin making deductions from employees’ wages to pay for the insurance they will have to carry next year.

Paid Family Leave Waivers

Employees whose regular employment schedule will not make them eligible to take Paid Family Leave may opt out and avoid paying for the program. The minimum eligibility thresholds are 26 consecutive weeks worked for employees regularly scheduled to work 20 or more hours per week and 175 work days in a consecutive 52-week period for employees regularly scheduled to work less than 20 hours per week.

The final regulations now state that employers must provide employees who do not meet these criteria the option to file a waiver.

Assessment of Public Comment on Revised Proposed Regulations

The Workers Compensation Board received approximately 58 written comments on the May 24, 2017 proposed rules. In its Assessment of Public Comment on Revised Proposed Regulations, the Board notes that “approximately 22 of those were form letters from employee advocacy groups.”

Most of the comments resulted in no change to the proposed regulations.

The Assessment document itself does provide several clarifications of note, including the following (all quoted directly with only minor edits for readability):

Who’s Covered?

  • Employees who work in New York State, with only incidental work outside the state, are covered.
  • If an employee works in another state, and only incidentally works in New York, they are not in covered employment.
  • If an employee does not perform his or her work in any other single state, he or she is in covered employment if some of his or her work is performed in New York and the employee is either: (1) based in New York; (2) controlled from New York; or (3) the employee lives in New York.
  • The statute does not require notification of deductions to employees.
  • Both employees who work more or less than 20 hours per week can take paid family leave once they become eligible. The 20 hours is only used to determine which of the two eligibility periods stated in section 203 of the WCL apply.
  • By applying the 26 consecutive weeks of employment standard for most employees in regular employment, employees, employers, and insurance carriers will be able to easily determine if an employee is eligible at the time leave is requested.
  • An employee’s regular employment schedule depends on the facts and circumstances of the employment setting.
  • It is the employee’s choice whether to complete a paid family leave waiver, not the employer’s choice.

FMLA Issues

  • If an employer elects to not designate a period of time off FMLA leave pursuant to the governing federal regulations, it is not a period of FMLA leave, and the employer has permitted the employee to use only paid family leave.
  • The Board received a comment requesting clarification as to what the same or comparable position means, and whether it tracks the meaning of “same or equivalent” under FMLA. The Board will issue further guidance on this, but no change to the regulation has been made.

Leave Issues

  • An employee with two jobs may have deductions taken from two jobs that reach the maximum deduction for each employer, and receive equivalent benefits.
  • To prevent an employee from taking more than maximum duration of paid family leave, insurance carriers are permitted to “coordinate efforts to create an electronic portal in order to file and administer claims or paid family leave and in order to coordinate benefits.”
  • The Board received a comment opining that the PFL system is untenable because there could be a disconnect between the carrier’s determination and the employer’s determination about whether or not leave should be denied. Because the employer does not decide whether to approve or deny a paid family leave claim, and if the employer suspects fraud it is free to contact the carrier, no change to the regulations has been made.

Employer Fact Sheet

A concise Employer Fact Sheet is available from New York State here.

It only provides the basic components of the Program. It does not explain most of the nuances contained in the New York Paid Family Leave Regulations.

Get Ready Now

It’s not too early to start preparing for New York’s Paid Family Leave. Employees can start taking the leave January 1, 2018. In the meantime, you may need to revise leave policies, educate supervisors, and prepare appropriate notices, forms, and procedures.

All employers should speak to their disability insurance carriers or administrators to discuss the impact of the Paid Family Leave requirements. This includes finding out the applicable premium and determining appropriate deductions from employees’ pay. Deductions can begin now, but can only be used to pay for the paid family leave coverage.

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Paid Family Leave

Updates to New York’s Paid Family Leave Program

Are you ready to implement the New York Paid Family Leave Program? More details are still emerging.

A previous post discussed the basics of the New York Paid Family Leave Program that is set to take effect in 2018. Recently, the state has issued new proposed regulations and established the first maximum employee contribution.

Beginning as early as July 1, 2017, employers may deduct up to 0.126% of an employee’s weekly wage with a maximum deduction of $1.65 per week.

Revised Paid Family Leave Regulations

On May 24, 2017, the New York Workers’ Compensation Board (WCB) issue new proposed regulations regarding the New York Paid Family Leave Program. These regulations replace those originally proposed on February 22, 2017. The new regulations have a 30-day comment period.

The new regulations are substantially similar to the ones proposed in February. However, there are some potentially significant changes, including the following:

  • Eligibility is now based on hours rather than days worked. Employees who regularly work less than 20 hours per week become eligible for paid family leave on the 175th day of employment. Employees who work 20 or more hours per week become eligible on the 26th consecutive work week of employment.
  • Hours now also determine waiver eligibility. Employees who will not meet the above thresholds in a 52-week period may file a waiver and avoid paying into the paid family leave program.
  • The regulations now provide that if leave qualifies under both the NY Paid Family Leave law and the FMLA, then the employer may require the employee to use other accrued paid leave. However, it’s not clear that the FMLA would permit this, and the federal law would likely trump the state law on this issue. Under the FMLA, an employer can only require an employee to use available paid leave to replace “unpaid” FMLA leave. But because the New York law would convert the leave to “paid” leave, it seems that an employer would violate the FMLA by requiring the use of other paid leave concurrently with the NY Paid Family leave.
  • The new regulations require employees to notify their employer for each day of intermittent paid family leave. The original regulations only required notice one. This is now more in line with the FMLA.

Further Guidance on Deductions to Fund Paid Family Leave

With its May 24th version of the proposed regulations, the WCB responded to concerns about employers being able to start making payroll deductions on July 1, 2017. Although no employees are eligible to take paid family leave under New York law until January 1, 2018, the WCB notes that employers may take deductions in advance to fund the necessary insurance policies.

On June 1, 2017, the New York State Superintendent of Financial Services issued her “Decision on Premium Rate for Family Leave Benefits and Maximum Employee Contribution for Coverage Beginning January 1, 2018.”  With no experience under the Paid Family Leave Program, the initial deduction allowance is based on claims and demographic data from New York’s statutory disability insurers and data from other states with paid family leave programs, among other sources.

The Superintendent determined that the maximum employee contribution for coverage beginning January 1, 2018, is 0.126% of an employee’s weekly wage up to the statewide average weekly wage. As of March 31, 2017, the New York State Average Weekly Wage is $1,305.92.

For an employee making $1,305.92 or more per week, the weekly premium contribution cannot exceed $1.65, or approximately $86 per year.

Should Employers Begin Making Paid Family Leave Deductions?

Employers should consult with their disability insurance carriers or administrators in determining when to begin making deductions for paid family leave insurance and the proper amounts. It remains possible that the State will change regulations that affect these deductions. For example, there is still uncertainty as to who will ultimately have the right to waive participation and how they will do so.

If you have employees in New York, this will not be the last you hear about this topic. Please subscribe to my newsletter to receive updates on the New York Paid Family Leave Program among many other topics.

New York Paid Family Leave

Introduction to the New York Paid Family Leave Program

Beginning in 2018 employers across the state of New York will have to allow their employees to take time off from work under the New York Paid Family Leave Program. Some of these businesses are already subject to the federal Family and Medical Leave Act (FMLA). However, the FMLA only affects employers with 50 or more employees and only permits unpaid leave. The New York Paid Family Leave Program applies to employers with as few as only one employee! Plus, because it is paid leave, employees are more likely to take advantage of it.

The state proposed rules expanding on the New York Paid Family Leave Program in February 2017. These regulations are not yet final. Thus, things could change before the law takes effect. However, here are some basics from what we know so far.

Differences between the FMLA and New York Paid Family Leave

  • Covered Employers

    FMLA: Governmental entities and private companies with 50 or more employees

    New York: All employers subject to the NY Workers’ Compensation Law; but optional for governmental employers (The proposed regulations are very complex for governmental employers. If you need assistance in navigating them, you can contact me.)

  • Eligible Employees

    FMLA: Employed for 12 months and worked 1,250 hours in preceding 12 months

    New York: Employed for 26 weeks (or 175 days if part-time)

  • Length of Leave

    FMLA: Up to 12 weeks in a 12-month period

    New York: Up to 8 weeks in 2018; up to 10 weeks in 2019-2020; and up to 12 weeks beginning in 2021

  • Compensation

    FMLA: None required; may be able to use other available paid leave

    New York: 50% of Average Weekly Wages (AWW) in 2018; 55% of AWW in 2019; 60% of AWW in 2020; and 67% of AWW beginning in 2021

  • Qualifying Circumstances

    FMLA: New child (birth, adoption, foster); Employee’s own serious health condition; Care for family member with serious health condition; “Qualifying exigency” military leave; Care for military service member with serious injury or illness

    New York: Just new child, care for family member with serious health condition, and “qualifying exigency” military leave. Doesn’t apply to leave for the employee’s own serious health condition!

  • Administration

    FMLA: All paperwork and decisions handled by employers.

    New York: The Paid Family Leave Program is a component of employers’ disability insurance policies and administered by the insurance carrier or self-insured employer.

Other Significant Components of the New York Paid Family Leave Program

  • Health insurance – As with the FMLA, employers must maintain health insurance coverage on the same terms as if the employee were actively employed.
  • Job Restoration – Similar to the FMLA, employees who take leave are entitled to return to the position they held before leave or to a comparable position with comparable pay, benefits, and terms and conditions of employment.
  • Impact of Collective Bargaining Agreement – If a CBA provides family leave benefits that are “at least as favorable” as the law, then the employer doesn’t have to separately satisfy the legal requirements.
  • Funding – Paid leave benefits will be funded entirely by employees through payroll deductions. Some employees who don’t work enough to be eligible to take Paid Family Leave may be able to opt out.

Potential Problems for Employers

Here are just a few early projections about how the New York Paid Family Leave Program could adversely impact workplaces:

  • Small employers (with as few as one employee) will now have to allow employees to take up to 12 weeks of paid leave, maintaining health insurance, and then reinstate them.
  • Larger employers will have to coordinate New York’s Paid Family Leave Program along with the FMLA, and the two won’t always line up.
  • Employees won’t like having the money taken out of their paychecks. They may seek increased compensation to offset the deduction.
  • Because employees will get paid during leave (and because they are paying for the Program in the first place), they are more likely to take time off.
  • Since the insurance carrier determines coverage, employers may have to allow employees to take leave while not knowing whether the employee is legally entitled to return to work.
  • Employees get paid more for taking Paid Family Leave than they receive in disability benefits for their own medical conditions. This could create new hostility, or at least confusion, among employees or between employees and their employers.

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