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.
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.