April 21, 2016 New York Paid Family Leave
KEEPING YOU INFORMED…
Governor Cuomo recently signed into law legislation that will institute a 12-week paid family leave benefit for New York employees. It will be phased in beginning on January 1, 2018.
The new law permits qualifying employees to take paid family leave for one of the following reasons: (1) to care for a new child; (2) to care for a family member (child, parent, grandchild, grandparent, spouse or domestic partner) with a serious health condition; or (3) to relieve family pressures when a family member (a spouse, domestic partner, child or parent) is called to active military service. Leave to care for a new child is available to both male and female employees and includes the placement of adoptive or foster children. It may be taken at any time in the child’s first 12 months after birth or in the first 12 months after the placement of an adoptive or foster child. Notably, paid family leave does not apply to leave taken by an employee due to his or her own serious health condition. A “serious health condition” will be defined in the same way as that term is defined for purposes of the Family Medical Leave Act (“FMLA”).
Paid family leave benefits will be overseen and administered by the New York State Disability Benefits Fund. While mandatory paid family leave benefits will only apply to private sector employers, public sector employers are permitted to “opt in” to the benefits, as they may with disability benefits. For employees represented by a union, this benefit must be collectively negotiated. The new law establishes the floor of benefits that can be negotiated. To the extent that an employer already has a collective bargaining agreement that provides for paid family leave benefits in excess of those provided by this new law, the new law does not diminish those contractually provided benefits.
To be eligible, qualifying employees[1] must have worked for their employer for 26 consecutive weeks. Unlike disability benefits, which have a waiting period, family leave benefits will be available to an employee on the first day of their leave.
Paid family leave will be gradually implemented according to the following schedule and with the following limitations:
- January 1, 2018 – qualifying employee will be entitled to eight weeks of paid leave, earning 50% of weekly pay, which will be capped at 50% of the Statewide average weekly pay;
- January 1, 2019 – qualifying employee will be entitled to 10 weeks of paid leave, earning 55% of weekly pay, which will be capped at 55% of the Statewide average weekly pay;
- January 1, 2020 – qualifying employee will be entitled to 10 weeks of paid leave, earning 60% of weekly pay, which will be capped at 60% of the Statewide average weekly pay; and
- January 1, 2021 – qualifying employee will be entitled to 12 weeks of paid leave, earning 67% of weekly pay, which will be capped at 67% of the Statewide average weekly pay.
Employees will bear the burden of funding these new benefits in the form of a weekly payroll tax of approximately $1 per employee, to be deducted from employee paychecks. Employees who are collecting paid family leave benefits cannot concurrently receive short-term disability benefits. During a paid family leave, the employer must maintain the employee’s health insurance benefits pursuant to the same terms and conditions as if the employee were still working. Unless otherwise provided by contract, an employee on paid family leave, though, is not entitled to accrue seniority while on leave.
When the employee knows in advance of the need to take family leave, the employee must provide the employer with 30 days’ notice of the need to take the leave. If the need for leave is foreseeable, but 30 days’ notice is not possible (because the need arises less than 30 days before the commencement of the leave), the employee is required to provide as much notice as is practicable.
Unlike with leaves pursuant to the FMLA, employers are prohibited from requiring an employee to use accrued vacation and personal time in order to be paid. An employer is, instead, required to allow the employee to choose whether he or she would like to use accrued vacation or personal time in order to receive full pay while on leave. If the employee chooses to use accrued vacation and personal time while on paid family leave, the employer may request that the employee reimburse it for the amount of paid family leave benefits the employee receives from the Disability Benefits Fund.[2] Any paid family leave will run concurrently with any FMLA that applies.
Upon the completion of the leave period, the employee is entitled to return to the same position held before the leave commenced, or a comparable position with comparable benefits, pay and terms and conditions of employment. Employers are prohibited from engaging in retaliation against the employee for taking the leave, although the employer is also prevented from treating an employee on paid family leave more favorably than employees who are not.
Because this law is new, there is not yet any implementing guidance. When implementing regulations are issued, we will provide further updates. In the interim, employers should begin evaluating their existing policies to determine what, if any, changes are needed to comply with this new law in advance of its effective date.
If you would like assistance with analyzing, revising or updating your existing policies, or understanding the new obligations pursuant to the paid family leave law, please contact Matthew J. Mehnert at (631) 414-5856 or MJM@lambbarnosky.com, or one of our other attorneys.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2016
[1] Although most private sector employees are considered “qualifying” employees for purposes of this new law, there are some limited exceptions that apply. If you have questions about the applicability of any of these exceptions, please contact one of our attorneys.
[2] The implementing regulations may provide guidance on how this can be accomplished.