Tag: paid leave

Paid Family Leave Request Forms

A Closer Look at the New York Paid Family Leave Request Forms

The New York State Workers’ Compensation Board has published several forms for use by employees making a paid family leave request. Employees will first be eligible for this leave beginning January 1, 2018. Here we’ll discuss forms and what they’ll mean for New York employers and employees.

If you’re just looking for the Paid Family Leave (PFL) forms themselves, you can find them here.

For more discussion about these forms and other PFL topics, check out this free webinar.

PFL Background

Under the New York Paid Family Leave Benefits Law, many employees across the state will be eligible for paid leave for these qualifying events:

  • Caring for a family member with a serious health condition.
  • Bonding with a child during the first 12 months after the child’s birth or placement for adoption or foster care, or to meet related adoption or foster care obligations.
  • “Qualifying exigencies” arising from a family member being on active duty or notified of an impending call to active duty in the U.S. Armed Forces.

Beginning in 2018, eligible employees may take up to 8 weeks of leave and receive up to 50% of their average weekly wage for any of these qualifying circumstances. By 2021, the benefits are scheduled to increase to 12 weeks of leave and up to 67% of the employee’s average weekly wage.

The pay component of the New York Paid Family Leave is an insurance benefit like the state’s short-term disability pay. Consequently, unlike the federal Family & Medical Leave Act (FMLA) where employers determine leave eligibility, the insurance carrier (or self-insured employer) decides whether employees qualify for New York Paid Family Leave.  This means that once employees complete leave forms, they will submit them to the insurance administrator for review and processing.

Insurers can use their own forms and allow telephonic or Internet reporting, but they must also accept the forms issued by the Workers’ Compensation Board.

Request For Paid Family Leave (Form PFL-1)

This is the generic form to be completed by any employee seeking New York Paid Family Leave. It has two parts. Part A is for the employee to complete. The employer completes Part B.

Part A

Part A start with basic information about the employee: name, address, social security number, date of birth, telephone number, gender, and preferred language. Then there’s an option section where employees can identify their race, for research purposes.

The next section of Part A gets into the basis for the paid family leave request. Specifically it asks about:

  • Reason for PFL request?
  • Which family member (by relationship, not name) is involved?
  • Will PFL be for a continuous period of time and/or periodic? (Including listing applicable dates.)
  • If providing less than 30 days’ advance notice to the employer, please explain . . . .

Finally, Part A ends with several items about the employee’s employment. Among these questions is whether the employee has more than one employer and whether they are also taking leave from another employer. It also asks whether the employee is receiving Workers’ Compensation Lost Wage Benefits. The employee must sign at the end of Part A declaring, essentially, that they have made no false statements in the form.

Part B

Like the employee’s part, the employer’s part of Form PFL-1 starts with a basic information section. The employer must fill out: business name, address, FEIN, SIC code, and contact information.

The employer also must provide information about the employee’s employment: date of hire, occupation, and wage data for the past 8 weeks.

Then Part B shifts to information about the employee’s paid family leave request:

  • Whether the employer is requesting reimbursement for wages it paid.
  • Whether the employee has received benefits for paid family leave or NYS disability in the past 52 weeks (with details).
  • Is the employee taking FMLA leave concurrently with PFL?

The FMLA question could be tricky. When the employer completes this form, it may not yet know whether it will grant FMLA leave. Ideally, the form really should ask, “Is the employee requesting FMLA leave concurrently with PFL?”

The employer must also provide the name and contact information for its insurance carrier.

At the end of the form, the employer must confirm that the employee is eligible for PFL based on their schedule and number of days worked. This does not necessarily mean the employee’s situation qualifies them for leave. The insurer will make that decision.

Bonding Certification (Form PFL-2)

This is the form for employees making a paid family leave request to bond with a newborn, an adopted child, or a foster child.

After entering personal information, the employee must fill out information about the child, including:

  • Date of birth
  • Gender
  • Whether the child lives with the employee
  • Nature of relationship (biological child, stepchild, foster child, adopted child, legal ward, or spouse/domestic partner’s child)

Then the employee must identify what type of documentation they are submitting. The instructions indicate that employees generally should not send originals.

Here are the possible forms of documentation:

  • Health care provider certification of pregnancy (original letter required)
  • Health care provider certification of birth (original letter required)
  • Birth certificate
  • Voluntary Acknowledgement of Paternity
  • Court order of filiation
  • Marriage certificate
  • Civil union/domestic partner’s documentation
  • Foster care placement letter
  • Court documents of adoption
  • Other documentation, if none of the others apply

Again, the employee must sign declaring that all information provided is accurate.

The employer does not complete any portion of this form.

Release Of Personal Health Information Under The Paid Family Leave Law (Form PFL-3)

By default, neither the employee requesting leave, nor the employer complete most of this paid family leave request form. Rather, the family member the employee will be caring for (or an authorized representative) must complete it. Of course, the employee may be the one to complete the form if they are an authorized representative, for example as the parent of the patient.

The purpose is to enable the family member’s health care provider to complete another form, providing information about the patient’s medical condition to the employee and the PFL insurance carrier.

The form specifies that the release only covers information related to the family member’s current condition that is the subject of the employee’s paid family leave request. Interestingly, the form doesn’t require the family member to identify which medical condition that is.

The employee can revoke the release anytime. Otherwise, it automatically expires after one year.

Health Care Provider Certification For Care of Family Member With Serious Health Condition (Form PFL-4)

The employee puts their personal information on the form and gives it to the family member’s health care provider along with the release authorization. Interestingly, the employee is supposed to include their own social security number and date of birth. Some employees might be reluctant to provide this information if they don’t share the same doctor as their family member. It may be possible, as a practical matter, for the employee to add this information after receiving the certification back from the provider.

The health care provider completes most of this form.

The first question for the health care provider is “Does patient require care by the employee requesting Paid Family Leave (PFL)?” This seems like a question that the health care provider wouldn’t necessarily be qualified to answer. The form clarifies that “providing care may include necessary physical care, emotional support, visitation, assistance in treatment, transportation, arranging for a change in care, assistance with essential daily living matters, and personal attendant services.” But it’s unclear how the doctor would know in some cases whether the employee would have to be the one to provide such care. Regardless, it’s fair to assume many health care providers will readily mark “yes” for this item.

The health care provider then indicates the patient’s diagnosis (on one line) and timing information, including:

  • Date patient’s condition commenced
  • First date care for patient is needed
  • Expected date patient will no longer require care
  • Estimated number of days per week or days per month patient requires care

Overall, there is little space on the form for the health care provider to enter information about the patient’s medical condition.

The rest of the form is for additional information about the health care provider, who is then required to certify the accuracy of the completed form.

Military Qualifying Event (Form PFL-5)

This form is completed entirely by the employee making the paid family leave request.

As with the other forms, the employee must enter identifying information. Then they provide information about the proposed military qualifying event.

The employee must identify the covered military member by name, date of birth, gender, address, and relationship to the employee.

The form also asks about the dates of the active duty and requires the employee to submit one of these forms of supporting documentation:

  • Covered active duty orders
  • Letter of impending call or order to covered duty
  • Documentation of military leave signed by the approving authority for the military member’s Rest and Recuperation

The employee is also prompted to identify the reason the employee is requesting PFL. The employee may select one or more of the following:

  • Arranging for child care
  • Arranging for parental care
  • Counseling
  • Making financial arrangements
  • Making legal arrangements
  • Acting as military member’s representative before a federal, state, or local agency for purpose of obtaining, arranging, or appealing military service benefits
  • Attending any event sponsored by the military or military service organizations
  • Other

Notably, the form doesn’t require the employee to explain most of the above items. Nor is there is any guidance regarding what may qualify in the “other” category. That item does at least provide a box where it looks like an employee could add more information. The form’s instructions suggest the employee should provide more information in narrative form, but it’s not clear whether that’s necessary. It seems likely that many employees would take the path of least effort and simply check a box.

In addition to advising the employee to attach supporting documentation, there is a supplemental section to be completed if the leave if requested to meet with a third party. The form suggests: “The reason for a meeting can include: arranging for child or parental care, counseling, making financial or legal arrangements, acting as the military member’s representative before a federal, state or local agency for purposes of obtaining, arranging or appealing military service benefits, or attending any event sponsored by the military or military service organizations.”

Processing of Paid Family Leave Request Forms

Once completing all the paid family leave request forms, the employee submits them to the insurance carrier. There is no requirement that the employee provide copies to the employer. This could make it difficult for the employer to even predict the likelihood of the insurer granting the PFL benefits. Meanwhile, however, the employer has to either allow or plan for the employee’s leave in case it is approved.

The law seems to allow the insurer to discuss the information the employee provides with the employer. But it’s not clear whether it would be appropriate for the insurer to share information obtained from a family member’s health care provider. The release only specifically authorizes release (a) to the employee and (b) to the insurance carrier.

Upon receipt of the necessary paperwork, the insurance carrier has 18 days to pay or deny the claim. Employees can appeal denials through a process that can result in arbitration. Unless self-insured, the employer is not a party to that process. Nonetheless, the employer is responsible for permitting leave, reinstating the employee, and maintaining the employee’s group health insurance coverage, depending on the outcome of the PFL benefits claim.

 

Click here for more information about a New York Paid Family Leave webinar.

 

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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