Overview. On April 4, 2016, New York’s Governor signed the Nation’s first 12- week Paid Family Leave Law (“PFL”), which provides wage replacement to employees to help them bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is called to active military service. Employees are also guaranteed to be able to return to their job and continue their health insurance.
History. Proposed regulations implementing the law were first published on February 22, 2017. The comment period for the initial proposed regulations closed on April 8, 2017. During the comment period, the New York Workers’ Compensation Board (the “Board”) received 117 formal comments. On May 24, 2017, the Board issued another set of proposed regulations implementing the PFL. The new regulations provide a detailed assessment of those comments and the Board’s responses, and the release of the new proposed regulations opens a new 30-day comment period.
More recently, on June 1, 2017, the New York State Department of Financial Services (DFS) announced that the weekly contribution rate for Paid Family Leave Benefits is 0.126% of the employee’s weekly wage (capped at New York State’s current average weekly wage of $1,305.92). Click here for a copy of the DFS Announcement. Consequently, the maximum contribution would be $1.65 per week per employee for coverage beginning January 1, 2018.
Effective Date. The law takes effect January 1, 2018, but employers may begin taking deductions from employees’ wages to pay for the insurance premiums beginning July 1, 2017.
Details. As excerpted from the NY State Website, answers to some common Employer and Employee Questions are set forth below:
Employer Questions:
What are an employer’s obligations under Paid Family Leave?
Employers will be required to purchase a Paid Family Leave insurance policy or self-insure. The premium of the policy will be paid for by your employees.
An employer may not discriminate against employees for taking Paid Family Leave. Employees are guaranteed job protection upon return from Paid Family Leave. For purposes of the Paid Family Leave program, job protection is defined as returning your employee to the same or a comparable job. Employees are also guaranteed continuation of health insurance while out on Paid Family Leave.
When does a new employer have to provide Paid Family Leave insurance coverage?
A new employer that has had 1 or more employees on each of at least 30 days in any calendar year is required to provide Paid Family Leave insurance coverage upon the expiration of four weeks after that 30th day of such employment.
Employers may collect employee contributions prior to obtaining the insurance policy or self-insured approval.
When will new employees be eligible for Paid Family Leave?
A new employee becomes eligible for Paid Family Leave benefits 26 weeks from the date they were hired.
If the new employee is part-time, they become eligible after working 175 days.
Where do I obtain a Paid Family Leave policy?
Employers should contact their current New York Disability Benefits carrier to learn more about adding Paid Family Leave coverage. If you renew or start New York State Disability Benefits in 2017, benefits won't start any earlier than January 1, 2018.
How much will Paid Family Leave cost a business?
The Paid Family Leave insurance premium will be funded in full by your employees.
Will employers have to pay an employee’s salary while the worker is on leave?
No. The employee will receive the Paid Family Leave benefit through the insurance policy.
What information do I need to communicate to my insurer when an employee requests Paid Family Leave?
As an employer, you are responsible to complete the employer portion of the claim form and provide detailed information to the insurance carrier regarding the exact dates an employee has used Paid Family Leave.
Employee Questions.
Eligibility. An employee must be employed full-time for 26 weeks or part time for 175 days to be eligible for a Paid Family Leave Benefit.
Employees do not have to take all of their sick leave and/or vacation before using paid family leave. An employer may permit employees to use sick or vacation leave for full pay, but may not require you to use this leave.
Maternity and Paternity Leave
Paid Family Leave only begins after birth and is not available for prenatal conditions. A parent may take Paid Family Leave during the first 12 months following the birth, adoption, or fostering of a child.
Caring for a Close Relative with a Serious Health Condition
A close relative includes:
· Spouse
· Domestic partner
· Child
· Parent
· Parent in-law
· Grandparent
· Grandchild
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves:
· inpatient care in a hospital, hospice, or residential health care facility; or
· continuing treatment or continuing supervision by a health care provider.
Active Duty Deployment.
Paid Family Leave is available for families eligible for time off under the military provisions in the federal Family Medical Leave Act when a spouse, child, domestic partner or parent of the employee is on active duty or has been notified of an impending call or order of active duty.
Do Employees have to participate in the Paid Family Leave program?
Yes, Paid Family Leave is not optional for most employees. The exception is if the employee is in a job that will not allow the employee to attain the 26 continuous weeks or 175 days needed to qualify for Paid Family Leave (for example a seasonal worker). In which case an employee would sign a waiver of PFL rights and no monies need to be withheld. Once the employer becomes aware of a change in the employee's schedule that would result in the employee becoming eligible for PFL, the employer is required to notify the employee and begin required to begin deducting contributions, including any retroactive deductions necessary to prevent the employer from paying for the coverage
I am pregnant. Will I be able to receive Paid Family Leave during my pregnancy?
Paid Family Leave only begins after birth. It is not available for pre-natal conditions.
Will I be able to use Paid Family Leave to take care of an eligible relative living outside New York?
Yes, as long as you are caring for an eligible family member, and provide the medical certification.
I am not a US citizen. Will I still be eligible for Paid Family Leave?
Yes. Your citizenship status has no impact on your Paid Family Leave eligibility.
I am an undocumented worker. Can I take Paid Family Leave?
Yes. Your immigration status has no impact on your Paid Family Leave eligibility.
Will I be able to use Paid Family Leave if I work part-time?
In most instances, yes. You must work 175 days part-time to be eligible for a Paid Family Leave benefit.
I am collecting workers’ compensation. Will I be able to use Paid Family Leave?
If you are not working and are collecting workers’ compensation, you may not use Paid Family Leave.
I am a freelance worker. Am I eligible for Paid Family Leave?
If you do not have a regular employer and work as an independent contractor, you will not have Paid Family Leave benefits unless you purchase coverage for yourself.
I am a farm laborer. Am I eligible for Paid Family Leave?
If you work in service as a farm laborer, you are not eligible for disability or Paid Family Leave benefits.
Will I have to take all of my sick time and/or vacation before I use Paid Family Leave?
An employer may permit you to use vacation or sick leave for full salary, but may not require you to use either.
Can I take Paid Family Leave and use my sick and/or vacation time together so that I receive my full salary?
Yes, if your employer allows you to use your sick and vacation time to allow you to receive your full salary, than you can do so.
Will my spouse and I be able to use Paid Family Leave at the same time?
If you and your spouse have different employers, you are both eligible to take Paid Family Leave at the same time.
However, if you and your spouse work for the same employer, they can deny Paid Family Leave to more than one employee at the same time to care for the same family leave recipient, or to bond with a child.
Additionally, based on the initial and revised regulations, we provide the following guidance:
Notice Requirements/ Intermittent Leave. The prior set of proposed regulations permitted employees who wanted to take intermittent PFL to only provide notice to the employer once. The new proposed regulations clarify that an employee using intermittent leave must give the employer separate notice for each day of PFL.
When Should Payroll Deductions Start? In its new proposed regulations, the Board addressed concerns about employers starting to take payroll deductions on July 1, 2017, when the PFL law does not go into effect until January 1, 2018. The Board noted that because the law establishes January 1, 2018, as the date upon which benefit payments begin, it is necessary that employers be permitted to take payroll deductions in advance to offset the cost of acquiring the mandated insurance policies. The employer is collecting the contributions from employees which will in turn be used to pay for the premium. The bottom line is that employers are allowed, but not required, to start taking payroll deductions on July 1, 2017. If an employer chooses not to do so, the employer will not be able to take deductions in excess of the maximum weekly contribution to retroactively cover the cost of providing PFL benefits.
Call to Action. ADP is currently reviewing its payroll systems and will provide further information on the process by which deductions from employees’ pay should be made (whether as a tax or a deduction). In the meantime, employers should assess eligibility of workers, and those who may be able to opt-out per the waiver provision. In addition, you should consider whether to begin deducting the published contribution from eligible employees’ wages on July 1, 2017. Further, you may wish to create an employee communication (we suggest utilizing the FAQs provided by the State), to inform employees about their rights and obligations under the law, and to advise them of when the deductions will begin.
Resources.
Full text of the proposed amended Regulations can be found by clicking below:
http://www.wcb.ny.gov/PFL/pfl-regs-text-revised.jsp
For more information on New York’s Paid Family Leave program, please click on the link below.
https://www.ny.gov/programs/new-york-state-paid-family-leave
To access a recent HR Tip on Paid Family Leaves, please click on the link below:
http://adpcomprehensiveservicesnewsletter.com/News?ArticleID=1925&TitleLink=Tip-Paid-Family-Leave-Entitlements-A-Growing-Trend-&ArtMID=530
Please reach out to your Relationship Manager with any questions about the New York Paid Family Leave Regulations.