Tag: leave

New York Paid Family Leave Rates 2019

Higher New York Paid Family Leave Rates in 2019

How is your company coping with New York Paid Family Leave so far? Remember that the paid family leave rates change next year. This includes both how much employees will pay for this statutory benefit and how much they can receive.

Employee Contributions

The New York Department of Financial Services (DFS) has announced the maximum employee-contribution rate for 2019. It will increase from 0.126% to 0.153% of the employee’s gross wages, up to an annual maximum. This maximum annual contribution will be $107.97 in 2019 compared to $85.56 in 2018.

This means an additional cost of up to $22.41 for many employees.

Paid Family Leave Benefits

But it’s not all bad news for workers. DFS also confirmed that the weekly paid family leave benefit will increase in 2019. The weekly benefit rate increases from 50% of the employee’s average weekly wage to 55%. This percentage only applies up to the first $1,357.10 of weekly earnings. An employee who earns more than that can only receive $746.40 per week in paid family leave benefits.

Plus, as originally scheduled, eligible employees may take two more weeks of paid family leave in 2019. The maximum allowance increases from 8 to 10 weeks.

Future Paid Family Leave Rates

Expect the contribution and benefit rates to change again.

Under the original schedule, maximum weekly benefits will increase to 60% of the average weekly wage in 2020 and 67% in 2021. The NYS Superintendent of Financial Services could delay these increases, but did not do so for 2019.

The maximum leave allowance will increase to 12 weeks per year beginning in 2021.

What Must Employers Do?

Companies should confirm their 2019 paid family leave premiums with their insurance carriers. Then make sure that next year’s payroll will include the correct contribution rates.

If your paid family leave policy reflects specific paid family leave rates for 2018, then you might need to change those.

This is also an excellent opportunity for employers to review which employees are eligible to opt out of the paid family leave program. Employers must offer qualifying employees the chance to waive coverage (and corresponding paycheck deductions). However, the waiver automatically expires if the employee later becomes eligible for paid family leave.

 

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New FMLA Forms

New FMLA Forms (Technically)

If your organization has 50 or more employees, then it may have to deal with the federal Family and Medical Leave Act (FMLA). FMLA compliance involves paperwork. Employers must provide eligible employees prescribed notices and can require their workers to complete leave-request forms. The U.S. Department of Labor maintains sample forms that most covered employers use. The DOL recently updated its model FMLA forms, though in a minor way.

The FMLA grants eligible employees up to 12 weeks (26 in limited cases) of leave per year to use in several situations. These include personal or family member serious health conditions, birth/adoption of a new child, and certain military-related matters. What documents should you be using when these situations arise in your workplace?

What Changed on the FMLA Forms?

Ready for this? The date. That’s it. The expiration date to be precise.

In 2015 the DOL made several substantive revisions to the FMLA forms related to the Genetic Information Nondiscrimination Act (GINA). Those forms showed a May 31, 2018 expiration date. Since then, the DOL has been extending the expiration date on a month-to-month basis up to August 31, 2018.

Over Labor Day Weekend (ironically) the DOL finally issued new forms that don’t expire until August 31, 2021. But there are no substantive changes. Just a new expiration date.

Get the New FMLA Forms

Even though nothing meaningful has changed, you might as well use the new forms. If nothing else, it will avoid questions from employees about why you’re giving them “expired” paperwork.

Here are links to the new FMLA forms:

Notices

WH-381 Notice of Eligibility and Rights & Responsibilities
WH-382 Designation Notice

Certification forms

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
WH-384 Certification of Qualifying Exigency For Military Family Leave
WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave
WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

Review FMLA Compliance

Since you’re already thinking about the FMLA now, it would be a good time to double check your organization’s compliance.

Here’s are some basics.

First, are you still covered? Have you dropped below the 50-employee threshold? Do you have any eligible employees? Among other criteria, an employee must work within a 75-mile radius of 50+ employees to personally qualify even if the company has 50 employees overall.

Second, are you providing the right documents to employees at the right times? Once an employee puts the company on notice of a possible FMLA situation, you must give them the notice of FMLA rights within 5 business days. You can either also provide the designation form or seek certification and then make a determination once the employee provides more information. Make sure you get the timing right either way.

Third, are you applying additional legal requirements correctly? Some states, like New York and California, have their own paid leave laws. These are not exactly the same as the FMLA and don’t necessarily apply under all of the same circumstances. Plus, the Americans with Disabilities Act and state disability discrimination laws might also extend leave entitlements as reasonable accommodations.

There’s much more to the FMLA. If you have questions or need more guidance, consult an experienced employment attorney.

 

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Firing Employees Medical Leave

Firing Employees on Medical Leave

Can you legally do this? Yes . . . maybe. Firing an employee on medical leave is a tricky proposition. But sometimes it is appropriate. Even then, it might not go over well.

Let’s review some of the legal issues and practical considerations that come up in this area.

Legal Protections

The full range of legal protections for employees on medical leave depends on where the employee works. But the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) apply throughout the United States. We’ll focus on those laws here, but you should also consider any similar state or local laws that may apply.

ADA

The ADA covers all employers with at least 15 employees. It prohibits discrimination against qualified individuals with a disability. It also requires employers to provide reasonable accommodations to employees with disabilities. Reasonable accommodations may include unpaid medical leave. (Read more: Is Time Off a Reasonable Accommodation?)

Just as refusing time off to an employee with a disability might violate the ADA, so might ending their employment while they’re out of work.

FMLA

Employers with 50 or more employees must allow eligible employees to take up to 12 weeks of unpaid leave per year for specific reasons. These reasons include the employee’s own serious health condition.

Most employees on FMLA leave have the right to return to work at the end of their leave. It is also unlawful to retaliate against an employee for taking FMLA leave. These protections may come into play if an employer seeks to end the employment of someone on FMLA leave.

What You Can’t Do

Employers can’t fire a qualified employee because of their disability . . . . Unless the disability prevents them from performing the essential functions of their job despite any reasonable accommodations.

There are many reasons why managers may get frustrated with employees who seem to never be at work. But there has to be more than just not wanting to deal with someone with a medical condition.

Employers covered by the FMLA also shouldn’t automatically fire an employee who doesn’t return at the end of 12 weeks of FMLA leave. An employee with a medical condition might still be eligible for additional time off as a reasonable accommodation under the ADA.

When Could You Fire an Employee on Medical Leave?

There aren’t many absolutes here. Each situation is different and may raise unique concerns, but here are some times when an employer might be able to separate the employment of someone on medical leave:

  • The business is closing, so everyone is losing their job.
  • You are eliminating the person’s position–especially if others not on leave will also lose their jobs without being replaced.
  • The employee has falsified the medical basis for leave.
  • You’ve discovered misconduct that warrants termination regardless of leave status.
  • The employee won’t be able to return for an extended period of time, such that continuing employment is not a reasonable accommodation or would impose an undue hardship.

The above list roughly moves from straightforward to more complicated analyses regarding employees on medical leave. In particular, the last situation involves the complex evaluation of when an accommodation is no longer reasonable–which seldom has an easy answer.

Putting It All Together

Employers should understand that employees are not automatically untouchable just because they’re on medical leave. But, it adds a factor to consider before making the termination decision. The situations posed above are only some of the more common that could occur. As each case raises its own nuances, employers should consult with experienced employment counsel when faced with these decisions.