Tag: paid leave

2023 Paid Family Leave

2023 Paid Family Leave in New York

The New York Paid Family Leave (PFL) Program provides partial pay for employees who take time off due to covered family situations. In 2023, paid family leave benefits are improving for employees, and their contributions are decreasing. In addition to higher wage replacement, employees will now be able to use PFL to care for siblings along with other previously eligible family members.

Qualifying Circumstances

PFL provides up to 12 weeks of job-protected time off to:

  • Bond with a newborn, an adopted child, or a child in foster care;
  • Care for a family member with a serious health condition; or
  • Assist with family situations when a spouse, domestic partner, child, or parent is deployed on active military duty.

PFL is also specifically available in some situations when an employee or their minor dependent child is under an order of quarantine or isolation due to COVID-19.

Covered Family Members

Before 2023, family care leave covered caring for a spouse, domestic partner, child, parent, parent-in-law, grandparent, or grandchild with a serious health condition.  Effective January 1, 2023, the law expands this coverage to include biological siblings, adopted siblings, step-siblings, and half-siblings.

Employee Contributions

Even though benefits are expanding to cover more family members this year, the employee contribution rate for PFL is decreasing. For 2023, employees will contribute 0.455% of their gross wages per pay period. The maximum annual contribution for 2023 is $399.43, which is $24.28 less than in 2022.

2023 Paid Family Leave Benefits

Despite the lower employee contribution, the maximum weekly benefit for employees taking PFL will increase in 2023. Eligible employees receive 67% of their average weekly wage up to a cap of 67% of the New York State Average Weekly Wage (AWW). The 2023 AWW is $1,688.19, making the maximum weekly benefit $1,131.08, which is $62.72 more than the maximum weekly benefit for 2022.

Gender X

In addition to reflecting the above changes, all PFL request forms have been updated to include a “Gender X” option to accommodate those identifying as gender neutral or gender other and have removed gender pronouns.

The updated forms are available at the links below:

Preparing for 2023

Companies should confirm their 2023 paid family leave premiums with their insurance carriers. Then ensure next year’s payroll includes the correct contribution rates.

Most employers will need to revise their paid family leave policies to include siblings among the list of qualifying family members. If your policy reflected specific rates for paid family leave in 2022 (or earlier), you should update that component too.

 

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Lawful Absences

New York Expressly Forbids Retaliation for Lawful Absences from Work

On November 21, 2022, Governor Hochul signed an amendment to the New York Labor Law to enhance employee protections against retaliation. The amendment adds an express prohibition of retaliation for any lawful absences from work. The amendment takes effect on February 19, 2023.

New York Labor Law Section 215

Section 215 of the New York Labor Law generally prohibits private (non-governmental) employers from discriminating against employees for engaging in a wide array of protected activities. Before this amendment, these protected activities included:

  • Making a complaint that the employee’s employer has engaged in conduct that the employee reasonably and in good faith believes violates any provision of the Labor Law or order of the Commissioner of Labor;
  • Being perceived by the employer as having made such a complaint;
  • Instituting a proceeding under or related to the Labor Law;
  • Providing information to the Department of Labor or the Attorney General;
  • Testifying in an investigation or proceeding under the Labor Law;
  • Exercising other rights protected by the Labor Law;
  • Being the subject of an adverse determination from the Commissioner of Labor against one’s employer.

Employees may file retaliation claims in court or with the Commissioner of Labor. Penalties can include repayment of lost wages; liquidated damages; and civil penalties of $1,000 to $10,000 for the first offense and up to $20,000 for the second offense. Violation of Section 215 also constitutes a class B misdemeanor.

Amendment Addressing Lawful Absences

The amendment expands the definition of protected activity to prohibit retaliation because an “employee has used any legally protected absence pursuant to federal local, or state law.”

Unfortunately, this new language is vague. If read broadly, as the Legislature likely intended, it will encompass numerous paid and unpaid leave laws, including:

  • New York Paid Sick Leave
  • New York Paid Family Leave
  • New York Paid COVID-19 Leave
  • New York Paid Vaccine Leave
  • Family and Medical Leave
  • Other specific New York Leaves, such as:
    • Blood Donation Leave
    • Bone Marrow Donation Leave
    • Military Spouse Leave
    • Witness and Victims of Crime Leave
    • Volunteer Emergency Response Leave
    • Jury Leave
    • Voting Leave

Employees are also often allowed time off while receiving workers’ compensation or disability benefits or as an accommodation under the Americans with Disabilities Act and New York Human Rights Law. None of these legal authorities specifically grants employees time off from work. However, it is plausible that Labor Law Section 215 will be interpreted to include leaves under these circumstances.

No-Fault Attendance Policies

Many employers apply attendance policies that allocate points on an employee’s record for each absence. Commonly, these policies apply regardless of the purpose or reason for the absence. Such policies are known as “no-fault” attendance policies. Whether the reason for the absence matters or not, point-based policies result in pre-specified employment consequences when employees reach certain levels.

The amendment to Labor Law Section 215 adds a specific prohibition against “assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.”

Practical Impact

It is arguable whether this amendment really expands worker protections. Generally speaking, various laws would likely already prohibit adverse employment action against employees for taking lawful absences from work. Section 215 itself probably already would have applied in many such situations.

But the Legislature at least intends to shed light on the subject and potentially increase available penalties. Accordingly, New York employers should review existing policies and practices regarding their handling of lawful absences by employees. Moreover, managers must understand the types of absences that may be protected under applicable laws.

 

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FMLA Basics

FMLA Basics and Beyond (Webinar Recap)

On October 27, 2022, I presented a complimentary webinar entitled “FMLA Basics and Beyond”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • Coverage & Eligibility
  • Qualifying Circumstances
  • Notice Obligations
  • Compliance Traps
  • Interaction with Other Laws

and much more!

President Bill Clinton signed the Family and Medical Leave Act (FMLA) into law on February 5, 1993. That means employers have been tasked with administering FMLA leaves for almost 30 years now. That doesn’t mean that compliance has become routine!

Though it has been a while since either the FMLA or its significant regulations have been amended, much else has changed in the world surrounding the leave granted by the statute. In this webinar, we take a look at applying the FMLA following a global pandemic and with an ongoing introduction of paid leave requirements that may interact with family and medical leave.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “FMLA Basics and Beyond”

The FMLA is far more involved than simply permitting employees 12 weeks of leave when they get sick or have a child. Did you know that some employees might be eligible to take up to 26 weeks off in a row? Or that employees can take FMLA leave to see a family member off to military service?

Employers with at least 50 employees must comply with the FMLA or risk significant penalties. Not sure whether your organization is covered, this webinar explains how to count employees to determine eligibility. Whether you’re familiar with applying the FMLA or not, it’s a complicated statute with tons of hidden pitfalls. We’ll discuss many of those and warn you where additional concerns may arise.

If you’re responsible for FMLA administration in your organization and haven’t reviewed the legal requirements lately, this is a great opportunity to be reminded of the many implications of employee leave requests. Do you know how the FMLA and ADA interact? What about state paid leave laws, such as sick leave and paid family leave, where they exist?

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