Employers should also consider implementing proper procedures for administering the paid family leave benefits, including appropriate weekly deductions from their employees’ paychecks, once the statute is effective.
Update: The Workers’ Compensation Board adopted final regulations implementing the Paid Family Leave Law on July 19, 2017. Those regulations clarified, and in some cases made substantive changes to, the provisions of the new paid family leave legislation as originally enacted in 2016. As one example, employee eligibility for paid family leave (PFL) is redefined under the final rules as follows: Employees with a regular work schedule of 20 or more hours per week are eligible for PFL after 26 consecutive weeks of employment, and employees with a regular work schedule of fewer than 20 hours a week are eligible for PFL after working 175 days. Please see our latest Alert for detailed analysis.
New York Governor Andrew Cuomo signed into law new paid family leave legislation (“NYPFLL”) on April 4, 2016, which will be effective January 1, 2018. It is the most comprehensive family leave law in the United States and, once implemented, guarantees all New York employees, both full-time and part-time, 12 weeks of paid leave when (1) caring for a child during the first 12 months after the child’s birth or the first 12 months after the placement of the child for adoption or foster care with the employee; (2) caring for a family member with a serious health condition; or (3) to handle family responsibilities when a spouse, domestic partner, child or parent is called to active military service. The only eligibility requirement is that the employee must work for his or her employer for six consecutive months in order to receive paid leave benefits.
Most significantly, the NYPFLL will not be funded by employers. Instead, the paid family leave will be funded by the employees themselves with a deduction from their weekly paychecks, which Governor Cuomo estimated will be about $1 per employee.
Prior to the passage of the NYPFLL, employers were required to follow the federal Family and Medical Leave Act (“FMLA”). The FMLA, however, applies only to employers with 50 or more employees and provides only eligible employees with 12 weeks of unpaid family leave. The new law generally provides for paid leave and applies to employers of all sizes. However, unlike the FMLA, the NYPFLL does not apply to an employee’s own serious health condition or disability due to childbirth, which continues to be covered by the disability portion of New York’s Workers’ Compensation Law, which does not contain a mandatory 12-week period of job protection.
The table below illustrates the key differences between the FMLA and the NYPFLL.
|
|
FMLA |
NYPFLL |
|
Covered Employers |
Employers with 50 or more employees for at least 20 workweeks in the current or preceding calendar year. |
An employer of one or more persons on each of 30 days in any calendar year becomes a “covered employer” four weeks after the 30th day of such employment. No exemption for small businesses.
Includes employers of personal or domestic employees in a private home if they employ at least one employee who works 40 or more hours per week for that one employer. |
|
Covered Employees |
Applies to employees who have worked for employer for at least 12 months, have 1,250 hours of service in the previous 12 months and work at a location where employer has at least 50 employees within 75 miles. |
Applies to full-time and-part time employees employed by the employer for 26 consecutive weeks with no hours threshold. |
|
Amount of Leave |
12 weeks of unpaid leave in a 12-month period. |
12 weeks of paid leave in a 12-month period. |
|
26 weeks of leave during a single 12-month period to care for a covered service member with a serious injury/illness if eligible employee is service member’s spouse, child, parent or next of kin. |
No comparable provision, but care for a service member who is a family member with a serious health condition would be covered for 12 weeks, as per below. |
|
|
Leave can be used for:
|
Serious health condition that makes the employee unable to perform his or her job. |
No comparable provision. |
|
Incapacity due to pregnancy, prenatal medical care or childbirth. |
No comparable provision. |
|
|
Caring for/bonding with employee’s child during first 12 months after birth or placement for adoption or foster care with the employee. |
Bonding with employee’s child during first 12 months after birth or placement for adoption or foster care with the employee. |
|
|
Caring for a family member with a serious health condition. |
Caring for a family member with a serious health condition. |
|
|
Any “qualifying exigency” arising out of the fact that the spouse, child or parent is on covered active duty or called to covered active duty with the Armed Forces.
|
Because of any “qualifying exigency” as interpreted under FMLA arising out of the fact that the spouse, domestic partner, child or parent of employee is on active duty or has been notified of impending call or order to active duty with the Armed Forces. |
|
|
Definition of “Serious Health Condition” |
Illness, injury, impairment or physical or mental condition that involves inpatient care (i.e., an overnight stay in a hospital, hospice or residential medical care facility or any subsequent treatment in connection with such inpatient care) or continuing treatment by a health care provider. |
Illness, injury, impairment or physical or mental condition that involves inpatient care in a hospital, hospice or residential healthcare facility, continuing treatment or continuing supervision by a healthcare provider. |
|
Definition of “Family Member” |
Spouse, parent or child. |
Child, parent, grandparent, grandchild, spouse or domestic partner. |
|
Notice Required |
If foreseeable, must provide at least 30 days’ notice; otherwise, as soon as practicable. |
If foreseeable, must provide at least 30 days’ notice; otherwise, as soon as practicable. |
|
Proof from Healthcare Providers
|
Employer may require need for leave for a serious health condition to be supported by a certification issued by a healthcare provider; must advise employee if certification is found incomplete and allow employee to cure deficiency; may require second or third medical opinion at employer’s expense if reason to doubt validity of medical certification. |
Must provide written notice and proof of need for family leave from family leave care recipient’s healthcare provider; may be required to undergo physical examination by qualified healthcare provider for additional verification. |
|
Substitution of Paid Leave |
Employees may choose to use, or employers may require employee to use, accrued paid leave to cover some or all of the FMLA leave taken. |
Employers may allow but may not require employees to use accrued, unused vacation or personal time to receive a full salary while on leave; if employee chooses to use such vacation or personal time, employer may request reimbursement from employee for any paid family leave benefits received by the employee during that period. |
|
Reinstatement |
Upon return from FMLA leave, employee must be restored to original job, or to an equivalent job with equivalent pay, benefits and other employment terms and conditions. |
Upon return from NYPFLL leave, employee must be restored to the position of employment he or she held when the leave commenced, or to a comparable position with comparable employment benefits, pay and other employment terms and conditions.
|
|
“Key” employee exception for certain highly paid, salaried “key” employees, where restoration to employment will cause “substantial and grievous economic injury” to employer’s operations. |
No “key” employee exception. |
Like the minimum wage plan, the NYPFLL will be implemented gradually as follows:
|
Effective Date |
Amount of Paid Family Leave Per Any 52-week Calendar Period |
Amount of Benefit |
Cap |
|
Jan. 1, 2018 |
8 weeks |
50 percent of employee’s average weekly pay |
50 percent of state average weekly pay (approx. $630 based on 2014 data) |
|
Jan. 1, 2019 |
10 weeks |
55 percent of employee’s average weekly pay |
55 percent of state average weekly pay (approx. $633 based on 2014 data) |
|
Jan. 1, 2020 |
10 weeks |
60 percent of employee’s average weekly pay |
60 percent of state average weekly pay (approx. $760 based on 2014 data) |
|
Jan. 1, 2021 |
12 weeks |
67 percent of employee’s average weekly pay |
67 percent of state average weekly pay (approx. $849 based on 2014 data) |
Notice/Penalties: Employers will be required to conspicuously post notice indicating they have complied with the paid family leave requirements and must also provide employees who take paid family leave for more than seven consecutive days a written notice of their rights under the law. Penalties for noncompliance include monetary fines ranging from $100 to $2,000 and/or potential imprisonment.
What This Means for New York Employers
Although employers will not directly bear the costs of this new family leave law, they may want to prepare for other ancillary costs associated with its implementation, including costs for implementing changes to internal policies and, for small businesses especially, costs related to finding coverage during periods of employee absences. Employers should also consider implementing proper procedures for administering the paid family leave benefits, including appropriate weekly deductions from their employees’ paychecks, once the statute is effective.
For Further Information
If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.