Tag: FMLA

New York Paid Family Leave vs. FMLA

New York Paid Family Leave vs. FMLA

As of January 1, 2018, New York State now has a paid family leave law fully in place. The new law affects virtually all non-governmental workplaces in the state. (And governmental entities that opt in.) I hope your organization is already up to speed on the basics of New York Paid Family Leave. This post goes beyond those for employers who are also subject to the federal Family and Medical Leave Act (FMLA). It addresses the differences and potential conflict between New York Paid Family Leave vs. FMLA.

Employer Coverage

The FMLA applies to all governmental employers in the United States, and all private-sector employers with 50 or more employees.

By contrast, the New York Paid Family Leave Benefits Law applies to (nearly) all non-governmental employers of New York employees. The law applies even if a company has only one employee in New York. Public-sector (governmental) employers can opt in to the Paid Family Leave Program, but are not automatically covered.

Employee Eligibility

To be potentially eligible to take FMLA leave at a given time, an employee must:

  • Have worked for the employer for at least one year;
  • Have worked at least 1,250 hours in the past 12-months;
  • Work at a location where the employer has at least 50 employees within 75 miles.

Under the New York Paid Family Leave Program, the eligibility of employees of covered employers depends on their regular work schedules:

  • Employees regularly scheduled to work 20+ hours per week become eligible once they have worked for at least 26 consecutive weeks.
  • Employees regularly scheduled to work less than 20 hours per week become eligible once they have worked for 175 days.

For more information, see Which Employees Are Eligible for New York Paid Family Leave?

Qualifying Circumstances

One of the most fundamental differences between New York Paid Family Leave vs. FMLA is that employees can’t use the paid family leave for their own serious health condition. The New York Paid Family Leave Benefits Law doesn’t cover this form of leave because mandatory short-term disability insurance (or worker’s compensation insurance) already provides benefits when employees can’t work due to injury/illness. However, the benefits are not the same, creating some gaps and potential confusion.

Both PFL and FMLA are available for:

  • Bonding with a new child;
  • Caring for a family member with a serious health condition; and
  • Qualifying exigencies related to a family member’s active military duty.

However, there are still differences between Paid Family Leave vs. FMLA within these leave categories.

Many of the differences in scope of leave eligibility result from New York’s broader definition of covered family members.

Under the FMLA, an employee can only take leave to care for a child’s serious health condition if the child is still under the age of 18 or otherwise “incapable of self-care.” FMLA leave is also available to care for a spouse or parent.

Employees can take New York Paid Family Leave to care for any of the following:

  • Child (of any age)
  • Parent, Step-Parent, and Parent-in-law
  • Spouse or Domestic Partner
  • Grandparent (including step/-in-law)
  • Grandchild

Find out more: When Can an Employee Take Paid Family Leave in New York?

Compensation

The FMLA only provides unpaid leave. As its name suggests, New York’s Paid Family Leave Program compensates employees on covered leave.

Initially, employees taking paid family leave in New York will receive 50% of their average weekly wage, capped at $652.96.

For more details, read What are the New York Paid Family Leave Benefits?

Other Distinctions Between Paid Family Leave vs. FMLA

I can’t address every difference between New York Paid Family Leave and the FMLA in this post. But here are some that New York employers with 50+ employees should familiarize themselves with.

Paid Time Off (PTO)

Under the FMLA, employers can require employees to use PTO (including vacation time, sick time, etc.) during FMLA leave.

The New York Paid Family Leave Program only gives employers the option to allow employees to use PTO during paid family leave. If the employer gives the option, it’s ultimately the employee’s choice.

Leave Increments

Employees can only take New York Paid Family Leave in daily increments.

Under the FMLA, employers must allow increments at least as small as one hour. If the employer allows shorter increments for other forms of leave, then the same shorter increments must also be available for FMLA leave.

Leave Administration

There are also critical procedural differences between New York Paid Family Leave vs. FMLA.

Most significantly, employers solely determine whether an employee qualifies to take FMLA leave. However, because New York’s Paid Family Leave compensation is an insurance benefit, the insurance carrier decides whether the employee qualifies.

This means that an employer may determine that an employee qualifies for FMLA leave, only to have the insurance carrier separately decide that they will not receive paid family leave benefits.

Under the FMLA, an unsatisfied employee’s recourse would be to sue their employer. But New York’s Paid Family Leave Program establishes an arbitration process, between the employee and the insurance carrier.

How To Balance Paid Family Leave vs. FMLA

Frankly, this will be no small feat for many employers. Some companies with many employees already have sophisticated systems in place to process and oversee FMLA leave. Most smaller companies closer to the 50-employee threshold just do their best on a case-by-case basis.

It’s too early to tell exactly how much of a hassle New York Paid Family Leave will prove to be, but some employers will face difficult situations. Beyond FMLA and paid family leave, various other legal restrictions/requirements may come into play. Accordingly, it is important for employers to seek legal advice from an attorney experienced in New York employment law to work through specific scenarios.

Are You Ready for New York Paid Family Leave? (Webinar)

On December 12, 2017, I presented a complimentary webinar on Preparing for New York Paid Family Leave. For those who weren’t able to attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I explain employers’ responsibilities under the New York Paid Family Leave Benefits Law, including the following topics:

  1. Paid Family Leave Policies
  2. Employee Waivers
  3. Leave Request Forms
  4. Interplay with FMLA

Click below to access the supplemental materials for this webinar:

  1. Webinar Slides
  2. New York Paid Family Leave Forms

Why You Should Watch This Webinar

All non-governmental employers must comply with the New York Paid Family Leave Benefits Law beginning January 1, 2018. This includes having paid family leave insurance coverage in place, posting a notice of compliance, and providing written guidance to employees. Employers must also be prepared to properly handle leave requests.

Even if you only have one employee, your company needs to take action!

This New York Paid Family Leave webinar tells you exactly what you need to do to be ready for January 1st. It also addresses some of the complicated issues any employer could face once employees start seeking this new form of leave.

For More on the Basics of the Paid Family Leave . . .

You can also watch my earlier New York Paid Family Leave webinar here.

Employment Law by the Numbers

U.S. Employment Law by the Numbers

There are probably many lawyers who went to law school because they don’t like dealing with numbers. I’m not one of them. So, I thought I would address some of the most significant numbers in employment law.

Many of these numbers establish thresholds, especially for coverage issues. But others are caps, dates, or other parameters.

(If you prefer words, click here for my free Employment Law Dictionary.)

1 – Employee threshold for many employment laws

One is the number of employees an employer must have before being covered by the federal minimum wage and overtime laws. It also establishes coverage for many other federal laws, including immigration, health and safety, and labor law requirements. So, if you have just one employee, you’re already responsible for employment law compliance.

$7.25 – Minimum wage

This is the current nationwide minimum wage for most employees under the Fair Labor Standards Act (FLSA). Many states and some cities have higher minimum wage requirements for their employers.

11 – OSHA recordkeeping threshold

Non-governmental employers with at least 11 employees must maintain records of serious work-related injuries and illnesses.

12 – Annual FMLA leave allowance, in weeks

The employer can determine what 12-month period counts as a year for its employees. The best option is usually a rolling year measured back from the date on which a particular employee will use the leave. Other options include the calendar year, the employer’s fiscal year, or a forward rolling year from the date the employee first takes FMLA leave.

15 – Several federal discrimination laws kick in

Employers with 15+ employees are subject to Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA). Title VII prohibits discrimination because of race, color, sex, religion, and national origin.  The ADA prohibits discrimination against qualified individuals with disabilities and requires employers to make reasonable accommodations. GINA prohibits discrimination based on genetic information, which is broadly defined.

20 – ADEA and COBRA coverage

The Age Discrimination in Employment Act (ADEA) prohibits discrimination because of age for employee 40 years of age or older.

Employees with at least 20 employees also become subject to COBRA insurance continuation requirements. COBRA entitles employees and/or their families to continue their group health insurance coverage for up to 18-36 months (depending on circumstances) after employment ends. The employees usually pay the coverage.

40 – FLSA overtime/ADEA age thresholds

Under the FLSA, employers must pay non-exempt employees overtime once they work more than 40 hours in a work week. The overtime rate must be at least time-and-a-half the employee’s regular rate.

As mentioned, employees also become protected by the ADEA when they turn 40.

50 – Affordable Care Act, FMLA, and WARN coverages

Employers with 50+ “full-time equivalents” qualify as large employers under the Affordable Care Act. This triggers various requirements, including the obligation to provide affordable health insurance to employees (or pay a penalty).

The Family and Medical Leave Act (FMLA) applies to employers with at least 50 employees.

The Workforce Adjustment Retraining Notification Act (WARN) requires employers to give written notice before mass layoffs and plant closings that will cause employment loss for at least 50 employees, sometimes more.

60 – Days in advance WARN notices must be issued

The employer must notify not only the affected employees (or their unions), but also certain government officials. There are exceptions to the notice obligation. If circumstances require the employer to act suddenly, the employer usually must give as much notice as possible.

75 – FMLA geographic proximity requirement

To become eligible for FMLA leave, among other conditions, an employee must work within a 75-mile radius of at least 49 other employees.

100 – WARN and EEO-1 thresholds

Non-governmental employers with 100 or more employees are potentially subject to WARN notice obligations and also must file annual EEO-1 reports. (Many federal contractors must file EEO-1 reports even if they have less than 100, but more than 50 employees.)

The EEO-1 form reports on company employment data by race/ethnicity, gender and job category. Read more about the status of EEO-1 reporting here.

$455 – Required weekly salary for some FLSA exemptions

To qualify for the most common FLSA exemptions, employees must receive a salary of at least $455 per week. The U.S. Department of Labor tried to increase this to $913 per week in 2016. Courts rejected that change, as has the current administration in Washington, which is reviewing an alternative approach.

1250 – Required annual hours worked for FMLA eligibility

If an employee has not worked 1250 hours for the employer in the past 12-months, they are not eligible to take FMLA leave.

$100,000 – “Highly compensated employee” exemption

The FLSA has special exemption rules for employees who receive at least $455/week in salary and $100,000/year in total compensation. These employees may be exempt even if they don’t satisfy the full standard exemption tests.

$300,000 – Highest cap on Title VII damages

Employers with more than 500 employees may be liable for up to $300,000 in compensatory and punitive damages for violations of Title VII’s anti-discrimination provisions. The caps are lower for employers with fewer employees: 15-100 employees = $50,000; 101-200 employees = $100,000; 201-500 = $200,000.

Some state employment discrimination laws have no caps. Thus, employees often sue under both state and federal laws to maximize their potential recovery.

No caps apply to damages for lost wages/benefits or attorneys fees under Title VII.

Employment Law Is Daunting

It’s not just the numbers. Employment law relies on many complicated words and phrases too. I’ve written a concise Employment Law Dictionary to help with that. Get your free copy here.