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New York Workers’ Compensation Board Issues Proposed Regulations on Paid Family Leave Law
Almost one year after New York State enacted a paid family leave law (the “PFLL”) that amends the Workers’ Compensation law, the Workers’ Compensation Board issued proposed regulations that, if enacted, would clarify certain aspects of the new law. 1 In sum, the PFLL will provide up to twelve (12) weeks of paid family leave that will be funded completely by employee contributions.
Specifically, as we reported in April 2016, the PFLL will require employers covered by the Workers’ Compensation law to provide employees with up to twelve (12) weeks of paid, job-protected leave when caring for an infant, a family member with a serious health condition, or to relieve family pressures when someone is on active military service or on notice of a call or order to active duty. The PFLL will be phased in beginning in 2018, where employees can take up to eight (8) weeks of paid leave at a rate of 50 percent of their average weekly wage, capped at 50 percent of the statewide average weekly wage. The law will be fully implemented in 2021, when employees can take up to twelve (12) weeks of paid leave at a rate of 67 percent of their average weekly wage, capped at 67 percent of the statewide average weekly wage. 2 The program will be funded entirely through employee payroll deductions, which will be collected under the employer’s disability policy.
Comments on the proposed regulations will be accepted through April 7, 2017 and, barring any significant changes once the comment period concludes, the regulations will provide as follows:
Leave Eligibility Terms
- Paid family leave may run concurrently with leave pursuant to the FMLA, but the FMLA requires unpaid leave for an employee’s own serious medical condition, while the PFLL will not apply to such leave.
- The PFLL is similar to provisions under the FMLA:
- Serious health condition” is defined the same as “serious health condition” under the FMLA.
- Similar to the FMLA’s “rolling month” calculation, the 12-month period for calculating how much PFL an employee has available is measured backwards from the time an employee uses PFL.
- PFL entitlement for the birth, adoption or foster placement of a child would expire at the end of the one year period following the birth, adoption or placement.
- Employees seeking to take PFL would be required to provide notice to their employers on the same terms as required under the FMLA for foreseeable and unforeseeable leave.
- “Part-time employees” are defined under the PFLL as those on a work schedule of less than five days per week. Part-time employees become eligible for PFL on the 175th day of such regular employment, whereas full-time employees become eligible for PFL after 26 consecutive work weeks of employment.
Employer Obligations
- Employers would be required to provide written notice to employees of their rights and obligations under the PFLL in their employee handbook or written leave policy. If the employer does not currently have a written handbook or policy describing leave provisions, the employer would be required to separately provide written guidance to all employees regarding the PFLL. The proposed rule also establishes a posting requirement in a form to be determined by the Chair of the Workers’ Compensation Board.
- With respect to how employers calculate the 26 week/175 day eligibility threshold for PFL benefits, approved vacation, sick, personal or other time away from work would be counted so long as the employee is still making contributions to the cost of PFL benefits during that time. However, periods of temporary disability under the New York Short Term Disability law would not count toward determining PFL eligibility. The proposed rule further states that an employee may not receive both short term disability and PFL benefits for the same period of time and is entitled to a combined total of 26 weeks of short term disability and PFL benefits during the same period of 52 consecutive weeks.
- Employers may begin implementing the necessary wage deductions for employee contributions under the PFLL as early as July 1, 2017 for coverage beginning on January 1, 2018. The maximum employee contribution amount is expected to be set before this time. The paid leave will be administered by the Employer’s existing disability carrier.
Waiver
- A waiver would be available for any employee whose regular work schedule is less than 26 weeks or 175 days in a 52 consecutive week period and therefore would never meet the minimum PFLL eligibility requirement. Such waiver shall exempt the employee from the obligation to make contributions to the cost of family leave benefits and shall exempt the employer from the obligation to provide family leave benefits for the employee for whom the waiver has been filed.
- Within eight weeks of any change in the regular work schedule of an employee that requires the employee to continue working for 26 weeks or 175 days in a 52-consecutive week period, any waiver filed shall be deemed revoked. An employee of a covered employer whose waiver has been revoked shall be obligated to begin making contributions to the cost of family leave benefits, including any retroactive amounts due from date of hire, as soon as the employee is notified by the covered employer of such obligation.
Part-Time Employees
- Paid leave for part-time workers who take the leave in single-day increments would be calculated by averaging the number of days the employee works per week relative to a full 5-day work-week. For example, for calendar year 2018, a part-time employee who works 3 days per week (60% of a full 5-day work-week) would be eligible for single-day PFL equal to 60% of the 40 day (8 week) total available to full-time workers. So, part-time employees working 3 days per week would be eligible for a maximum of 24 days in any 52 consecutive week period.
- Part-time employees taking PFL in weekly increments would be eligible for the maximum number of weeks of leave in any 52 consecutive week period. For example, in 2018, a part-time employee is entitled to a total of 8 weeks paid leave in any 52 consecutive week period in the same manner and extent as full-time employees.
Penalties
- Employers who fail to provide PFL coverage would be liable for a fine up to 0.5% of the employer’s weekly payroll during the lapse, and an additional sum of up to $500. If an employer fails to provide coverage and an employee takes family leave, the employer would be liable for the payment of the benefits in full and would waive the contribution amount for that time. If an employer fails to continue health insurance benefits for an employee during PFL, such employer would be liable for the employee’s medical costs during the time of PFL.
- Similar to Workers’ Compensation benefit disputes, disputes arising under the PFLL would be subject to arbitration pursuant to a process before the Workers’ Compensation Board as set forth under the regulations.
Employers will have to revise their handbooks, policies and practices beginning on January 1, 2018 to comply with the PFLL. We will keep you apprised of when the regulations go into effect as well as any changes as a result of the comment period. Employers can also visit the following state website for more information.
If you have any questions, please do not hesitate to contact David R. Rothfeld, Lois M. Traub, Alexander Soric, Robert L. Sacks, Michael Lydakis, Jennifer Schmalz or Jaclyn Ruocco.
cc:
Vijay Dandapani, President and CEO
Hervé Houdré, Chairman
1. The comment period ends April 17, 2017 at which point the regulations would go into effect shortly thereafter.
2. The New York State Average Weekly Wage (“NYSAWW”) is the average weekly wage paid in New York State during the previous calendar year as reported by the Commissioner of Labor to the Superintendent of Financial Services on March 31 of each year. The New York State Department of Labor’s Research and Statistics Division has computed the NYSAWW for calendar year 2015 to be $1,296.48. |
