Tag: paid leave

New York Bereavement Leave

Cuomo Vetoes New York Bereavement Leave Law

In June 2018, the New York State Legislature overwhelmingly approved legislation that would have granted paid bereavement leave rights to most employees. The measure would have changed the New York Paid Family Leave Benefits law to include bereavement leave along with the existing qualifying circumstances.

In light of extensive resistance from the business community, the Legislature did not formally deliver the bill to the Governor’s office until December. Upon receipt, Governor Cuomo vetoed the legislation ostensibly out of concern for the impact on workers.

Proposed Bereavement Leave Amendment

New York bereavement leave legislation passed the Senate by a vote of 61-1 and the Assembly 111-32.

Republican Senator Rich Funke and Democratic Assemblyman Joe Morelle sponsored the amendment. Both have lost children who were in their early thirties. Their memorandums in support of the bill stated:

“The inability to take time to process grief not only has an impact on a person’s health and their family, it has a profound impact on their ability to carry out their normal day to day tasks. However, on average, four days are allotted for the death of a spouse or child, according to the Society for Human Resource Management 2016 Paid Leave in the Workplace Survey.”

The legislation relied on additional wording in the Paid Family Leave Benefits law that took effect at the beginning of 2018. It modified the definition of “family leave” to include “leave taken for the purposes of bereavement due to the death of a family member.” The legislation also indicated that a death certificate would provide the necessary certification of eligibility for leave.

Potential Impact of Proposal

These minimal revisions to the Paid Family Leave legislation could have had extreme consequences.

Bereavement leave apparently would have been available for up to 10 weeks (increasing to 12 weeks in 2021) each year without any limitation on the timing relative to the death. Moreover, it would have been available equally regarding a broad array of family members, including grandchildren, children, spouses, parents, and grandparents. Although the New York Workers’ Compensation Board likely would have been able to issue regulations related to the new bereavement leave component of Paid Family Leave, it might have lacked authority to place further limitations on those parameters.

As the Paid Family Leave Program operates as a (primarily) employee-funded insurance benefit, employees would have had to contribute more out of their paychecks to fund the insurance premiums. As with the original Paid Family Leave categories, this long-term bereavement leave would have been difficult for the State to price effectively, potentially leading to over- (or more likely) under-funding in the first years.

Business Community Opposition

The Business Council of New York led the efforts of more than 20 prominent business groups, including many chambers of commerce, seeking Governor Cuomo’s veto of this legislation.

This consortium’s August 2, 2018 letter to the Governor’s office noted that the Legislature had rebuffed efforts to include more reasonable limits on paid bereavement leave:

“The Business Council’s recommendations for reasonable parameters on any expansion of PFL to bereavement were rejected by both the Senate and Assembly sponsor. These included limiting bereavement leave to several weeks, to be used within 180 days of a family member’s death.”

This letter also expressed concern “that the Legislature is proposing a dramatic expansion of the Paid Family Leave Act that has only been in effect for just over six months [now one year], and before any usable data is available regarding utilization or costs. Employers, the state, insurers and employees are still working to understand and implement the current law.”

Finally, these business groups noted that fully-paid bereavement leave is already a standard employee benefit, though often only for a few days; and that “Employers understand that to attract and retain the best talent available they need to be there for their employee[s] in their time of need and will continue to do so without another burdensome government mandate.”

Governor Cuomo’s Veto

Although business groups more vocally object to this legislation, Governor Cuomo publicly relied almost exclusively on supposed worker concerns in his veto message:

“Workers’ organizations such as A Better Balance have expressed significant concerns to me about this bill, and, as difficult as it is, I must heed their concerns.”

A Better Balance prides itself on having been active in supporting New York’s original Paid Family Leave law. But the organization posted a call to action on its website encouraging the Governor to veto the bereavement leave amendment. It emphasized the anticipated high costs to workers:

“Costs – entirely borne by workers – will be extremely high. Because paid family leave is 100% worker funded, this bill would impose potentially very high, uncalculated costs on New York workers—costs that will fall especially heavily on low-income workers.”

Governor Cuomo repeated that concern, while otherwise sharing some raised more specifically by the Business Council. For example, the veto memorandum notes: “Second, there is no stated limit on when leave can be taken. Unlike bonding leave, which is limited to 12 months from the qualifying event, no such limit would exist here. This drafting failure could lead to claims being made well beyond a year from death.”

The Future of New York Bereavement Leave

Employers should not expect this issue to disappear in 2019. Governor Cuomo concluded his veto message by commenting: “I am committed to working with the Legislature in the coming legislative session to resolve these issues for the benefit of hardworking New Yorkers.”

What might an alternative New York bereavement leave law look like?

New York Legislators will have to decide whether to continue to pursue bereavement leave through the Paid Family Leave Program or another path.

PFL offers the benefit of being an existing, employee-funded system. But any addition of bereavement leave must be much more narrowly drafted than it was in the 2018 legislation. The lawmakers should separately address issues such as length of leave available per death, total leave available per year, timing of leave, etc. And 10 or 12 weeks projects as an unaffordable and overly burdensome duration. The Legislature should also consider whether the same leave parameters should apply equally to small and larger employers.

The Legislature could alternatively seek to impose a mandatory paid or unpaid bereavement leave requirement outside of the Paid Family Leave Program. However, it would then be more difficult to effect an employee-paid system. Requiring employers to offer more than a couple of days of paid bereavement leave would raise significant opposition. And any requirement that small employers pay employees not to work could be financially crippling.

 

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New York Public Employees Get Paid Cancer Screening Leave

New York Public Employees Get Paid Cancer Screening Leave

Beginning March 18, 2018, public officers and employees in New York State may take paid leave to undertake cancer screening. This modifies earlier cancer screening leave laws that only applied to screening breast and prostate cancer.

According to the bill sponsors: “The purpose of this legislation is to encourage people to be screened regularly for all types of cancer by providing time off from work, thereby increasing the number of cancers caught at an early stage and improving public health.”

The amendment passed unanimously (60-0) in the New York State Senate. The Assembly passed it on a 134-6 vote.

Governor Andrew Cuomo signed the change into law on December 18, 2017, but it would not take effect for 90 days.

Who Is Eligible?

This right extends to every public officer or employee of the state or any county, community college, public authority, public benefit corporation, board of cooperative educational services, vocational education and extension board, school district, or other participating employer in the New York state and local employees’ retirement system or the New York state teachers’ retirement system.

The law does not apply to non-governmental employers in the private sector.

What Type of Cancer Screening?

Any kind.

Where Section 159-b of the New York Civil Service Law previously referred to screening for “breast cancer,” it now simply says “cancer.”

The only change in the entire law was to delete that single word twice. But that small change significantly expands the leave available to public employees.

(Note: Another section of the Civil Service Law that provided leave for prostate cancer screening was simultaneously repealed as redundant.)

How Does the Leave Work?

If the employee seeks time off for cancer screening, the employer must excuse the absence with pay. The employer cannot charge the leave against any other leave available to the employee (e.g., PTO, vacation, or sick leave). This paid cancer screening leave is available for up to 4 hours per year.

Employers may require all employees taking paid cancer screening leave to provide a written referral from a physician or other health care provider.

What Do Public Employers Need to Do?

At a minimum, New York public employers must accept requests for time off for cancer screening beginning March 18, 2018. Governmental entities that have policies in place for breast cancer and prostate cancer screening leaves should amend them.

Employers should expect more requests for cancer screening leave now that the law covers all forms of cancer.

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.