August 08, 2017 The New York Paid Family Leave Law: What Public Sector Employers Need to Know
KEEPING YOU INFORMED…
If you are, or work for, a public sector employer, you have undoubtedly received numerous e-mails and notices about the new New York Paid Family Leave Law[1] (“NYPFL Law”), which goes into effect on January 1, 2018. You have also likely received notifications from your (or other business savvy) insurance carrier regarding the implementation of payroll deductions for your employees, which can now begin effective immediately. This memo provides you with the basic, need-to-know facts about the NYPFL Law as they pertain to the public sector.
Q: WHAT IS THE NYPFL LAW AND WHAT DOES IT PROVIDE FOR EMPLOYEES?
A: The NYPFL Law[2] is designed to, in a nutshell, provide employees with partial wage replacement benefits (paid for through employee payroll deductions) while on certain types of leaves, including: to care for a “close relative” with a “serious health condition;” to bond with the employee’s newborn, newly-adopted or newly-placed child within the first 12 months of the described-of event; or when there is a qualifying exigency arising from the service of a family member in the U.S. Armed Forces as defined in the federal Family and Medical Leave Act (commonly known as “FMLA”). It does not cover FMLA-based leaves for personal illness or injury.
Q: WHICH EMPLOYEES ARE ELIGIBLE FOR PAID FAMILY LEAVE?
A: Pursuant to the NYPFL Law, full-time employees, which are defined as those employees who regularly work more than 20 hours per week, will be eligible for paid family leave after 26 weeks of employment. Those employees working less than 20 hours per week will also be eligible for paid family leave, but only after 175 working days.
Q: WHO IS CONSIDERED A PUBLIC SECTOR EMPLOYER?
A: The NYPFL Law defines a “public employer” as “… the state, any political subdivision of the state, a public authority or any other governmental agency or instrumentality thereof.”
Q: ARE PUBLIC SECTOR EMPLOYERS REQUIRED TO PARTICIPATE IN/PROVIDE NYPFL BENEFITS?
A: Public sector employers are not required to provide NYPFL Law benefits.
Q: HOW CAN A PUBLIC SECTOR EMPLOYER PARTICIPATE IN/PROVIDE NYPFL BENEFITS?
A: Public sector employers may opt into (and out of) the program “at any time” on behalf of their employees, subject to the notice provisions outlined below. The phrase “at any time” is restricted by an employer’s collective bargaining obligations with its respective unions. There is no specific deadline by which public sector employers must opt into the program, except for employers who voluntarily provide disability benefits pursuant to Workers’ Compensation Law § 212(2). A public sector employer should either check its disability policies or prior Board resolutions/ordinances, or call its insurance provider or the Workers’ Compensation Board to determine whether its disability policies are statutory policies pursuant to the Workers’ Compensation law triggering this exception.[3]
Opting into this program means that the public sector employer will be voluntarily subjecting itself to the various obligations and requirements outlined in the NYPFL Law and its accompanying regulations. These include, among other things, notifying the Workers’ Compensation Board Chair about the agreement to provide NYPFL Law benefits and providing the Chair with a copy of the paid family leave plan, a list of the covered employees and the effective dates of coverage.
A public sector employer with non-union employees may opt-into the NYPFL Law benefits program “within ninety days’ notice to such public employees.”[4] It must also provide at least 90 days’ written notice to those employees and to the Chair of the Workers’ Compensation Board prior to collecting the first employee contribution. In addition, the public sector employer must provide 12 months’ written notice of the decision to discontinue the coverage prior to ceasing the coverage/opting out. Failure to provide the written notices in accordance with the regulations will subject the employer to “fines, assessments and other penalties as prescribed by law, including but not limited to, section 220 of the Workers’ Compensation Law.”[5] Pursuant to section 220, employers can be fined $500 for each violation.
Notably, certain public sector employers (any public authority, municipal corporation, fire district or other political subdivision that has become a covered employer for the purposes of providing disability benefits pursuant to Workers’ Compensation Law § 212[2]) have a deadline of December 1, 2017 by which to decide whether they will provide NYPFL Law benefits and must notify their employees, their disability carrier and the Workers’ Compensation Board of their decision by that date. If an employer (as described in this paragraph) opts to provide NYPFL Law benefits by the December 1, 2017 deadline, the regulations provide a detailed list of additional requirements and obligations that must be followed.
Public sector employers that have opted in to providing NYPFL Law benefits (pursuant to a collective bargaining agreement) must provide employees and the Chair of the Workers’ Compensation Board with at least 12 months’ written advance notice of the mutual decision to later discontinue providing these benefits.
Q: DO I NEED TO START IMPLEMENTING PAYROLL DEDUCTIONS?
A: Unless and until a public sector employer opts into this program, it should not make any payroll deductions for these benefits. If a public sector employer does opt into these benefits, it may, but is not required to, begin making NYPFL Law payroll deductions for the benefits effective January 1, 2018.
The NYPFL Law is still in its infancy and will undoubtedly spur a lot of questions and unintended results as it is rolled out. Before you decide to negotiate or unilaterally (for non-union employees) opt into the NYPFL Law benefits program, we encourage you to give us a call to discuss the various considerations related to, and potential consequences of, providing this benefit to your employees.
If you have any questions regarding the NYPFL Law or its application to public sector employers, please contact Alyssa Zuckerman or one of our other attorneys by calling (631) 694-2300.
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 2017
[1] The NYPFL program hotline number is 844-337-6303, and the website is https://www.ny.gov/programs/new-york-state-paid-family-leave.
[2] N.Y. Workers’ Compensation Law § 212-B(1).
[3] There may be different obligations (or lack thereof) per employee group depending on the type of disability insurance provided.
[4] N.Y. Workers’ Compensation Law § 212-B(3)(b).
[5] NYPFL Regulations – Subpart 380.10: Public Employers that Opt In – Section 380.10-1(a)(4)(i).