Tag: leave

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!

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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