The New York State Paid Family Leave Program takes effect January 1, 2018. All non-governmental employers will be covered. Public-sector employers will only be covered if they opt in. But not every employee will be entitled to take paid family leave. So, which employees are eligible?

(Watch my New York Paid Family Leave webinar and find out about the next one!)

Employees Whose Regular Schedule Is 20+ Hours Per Week

An employee who is regularly scheduled to work 20 or more hours per week becomes eligible when they have been employed for at least 26 consecutive work weeks preceding the first full day of family leave.

There are special rules for employees working in businesses that regularly hire workers from day to day and where the nature of employment has breaks at certain times of year (e.g., schools).

Employees Whose Regular Schedule Is Less Than 20 Hours Per Week

An employee who is regularly scheduled to work less than 20 hours per week becomes eligible when they have worked 175 days before the first full day the leave begins.

Impact of Other Leaves in Determining Which Employees Are Eligible

In determining eligibility for family leave, the use of scheduled vacation, personal, sick, or other approved leave time is counted as consecutive work weeks or days worked, if the contributions to the cost of family leave benefits have been paid for such periods of time.

However, periods of temporary disability taken pursuant to the New York Disability Benefits Law do not count. This includes both short-term disability leave and paid family leave.

Family Leave Waivers

Certain employees who are unlikely to become eligible for paid family leave may file waivers to avoid contributing to the cost of paid family leave benefits.

An employee may waiver coverage if:

• Their employment schedule is 20 hours or more per week, but they will not work 26 consecutive weeks; or
• Their regular work schedule is less than 20 hours per week and they will not work 175 days in a 52 consecutive week period.

Under the Workers’ Compensation Board’s final regulations, it now appears that employers are required to offer the waiver to employees who are eligible to waive coverage.

Employees who are eligible to file a waiver, but do not, must still contribute like other employees to the cost of paid family leave benefits through payroll deduction.

If the schedule of an employee who has filed a waiver changes, then their waiver may become invalid. This would occur within 8 weeks of any change in their regular work schedule that requires the employee to work for 26 consecutive weeks or 175 days in a 52 consecutive week period. If this happens, then the employee becomes subject to payroll deductions. The deductions may begin even before the employee would become eligible to take paid family leave.

Learn More

Employers will need to know more than which employees are eligible for paid family leave. They also need to know, for example, when eligible employees may take leave. Stay tuned for more posts about the New York Paid Family Leave Program.

I am also conducting webinars to assist employers with New York Paid Family Leave.