Beginning Jan. 1, 2018, New York was the latest state to implement required paid family leave for private employers. Under the new law, most employees working in New York state are required to have PFL, similar to disability benefits law. Eligible employees can receive up to eight weeks of PFL at 50% of their average weekly wage, capped at 50% of the statewide average weekly wage. Benefits will increase through 2021, when employees will receive up to 67% of their average weekly wage, capped at 67% of the state average weekly wage. Like DBL, PFL plans can be obtained by an employer through an insurance company, but unlike DBL, PFL will provide job protection for the employee.
New York joins California, Rhode Island and New Jersey in providing paid leave for employees who need time off to care for sick family members or to bond with a new child. New York also provides paid leave for certain absences that arise out of the employee’s covered family member’s deployment abroad on active military service. In addition to these states with active paid leave laws, D.C. and Washington state have passed paid leave laws that will become effective in 2020, and legislation is underway in dozens of other states and municipalities to implement variations of paid family leave.
So, while your HR team may not have employees in the four states where it’s now law, chances are it’s coming soon to a state or municipality near you.
As we close out the first quarter of implementing New York paid family leave, it’s important to spotlight a few key nuances important to any HR manager with employees in New York state. Here are seven of the most important points to remember.
Eligibility. Employees working more than 20 hours per week must be employed for 26 consecutive weeks to be eligible for New York paid family leave. Those working less than 20 hours per week will become eligible after working 175 days. Employers must give employees who will not work 26 consecutive weeks or 175 days in a 52-week period the option of filing a waiver.
Qualifying events. There are three primary events which qualify an employee to take PFL.
· Bonding with a newborn or foster care/adoption placement. Must be taken within one year of birth or placement.
· Family member with a serious health condition. New York defines a family member as a parent or parent-in-law, spouse or domestic partner, child (of any age), grandchild or grandparent
· Military active duty/qualifying exigency leave. This includes an absence for FMLA-qualifying exigency arising from a family member’s call or impending call to duty in the U.S. Armed Forces. Family member for qualifying exigency leave includes a parent or parent-in-law, spouse or domestic partner or a child.
Coordination with other benefits law. There are some key distinctions in when and how to take PFL with other benefits.
· DBL: An employee may not receive PFL and DBL benefits concurrently. Any time taken for PFL is reduced from the 26 weeks allowed under DBL.
· FMLA: PFL will run concurrently with FMLA if leave reason qualifies under both laws, the employee is eligible for both laws, and the employer designates FMLA.
Covered employment. Employees who are physically working in New York State (including those who work from home) or who have incidental work outside the state are covered. Those who are physically working outside NY or only have incidental work in NY are not covered. If an employee works in multiple states and there is no single state for physical work, but the employee does some work in NY, the employee is covered by New York PFL if the employee is based, controlled from or lives in New York.
Multiple employers. Employees who hold more than one job may take PFL from both jobs, but they must do so with both employers concurrently. When an employee attains eligibility with a new employer, coordination with the previous employer is required to determine how much PFL has been taken in the previous 52 weeks. This is another reason why it’s important to maintain thorough records of all leave being taken by your employees.
Alignment with corporate paid leave benefits. If an employer has a separate paid leave program that fulfills or exceeds New York state law, the employer’s policy for their paid leave program will dictate how it interacts with the state PFL. Alternatively, employers may submit their plan to the New York state Workers’ Compensation Board for approval in lieu of obtaining state PFL coverage. The provisions of the PFL law are a foundation and employers are free to exceed the minimum benefit required by law.
Coordination with accrued PTO policies. When an employee is on PFL leave that runs concurrently with FMLA, an employer can require the employee to take earned time off (e.g. PTO, vacation, etc.) concurrently with FMLA and PFL. If not concurrent with FMLA, the employee has the choice of whether to use earned time off to receive 100% of their pay while on PFL.
While this is by no means an exhaustive list of key points of New York PFL, it can help keep you and your HR team on track. It’s important to regularly monitor for updates, addendums and waivers from New York state (and other states), as requirements continue to evolve.
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