The employers covered by the new Paid Family Leave Law are those with one or more employees in New York State working on each of at least 30 days in any calendar year.
The law will work in conjunction with the FMLA, which provides employees with up to 12 weeks of unpaid leave in certain circumstances. Although the two leaves will run concurrently, it is possible that an employee will be eligible under one law and not the other.
The law will be phased in over four years beginning January 1, 2018. Benefits provide the employee a percentage of their average weekly wage and will be capped at 67% of the statewide average weekly wage when fully implemented in 2021:
2018: 8 Weeks Paid Leave; Benefits - 50% of the statewide average weekly wage
2019: 10 Weeks Paid Leave; Benefits - 55% of the statewide average weekly wage
2020: 10 Weeks Paid Leave; Benefits - 60% of the statewide average weekly wage
2021: 12 Weeks Paid Leave; Benefits - 67% of the statewide average weekly wage
Eligible employees will receive paid family leave to care for a qualified person at the intervals described in the above table. Full time employees will be eligible for the benefit after they have worked for their current employer for 26 consecutive weeks and part time employees will become eligible on the 175th day of work. Employers cannot require the employee to take sick or vacation pay before using paid family leave, but the employee may elect to do so.
Types of Covered Leave
Parental Leave includes bonding time post adoption or childbirth and can be taken at any time during the first 12 months after the birth or adoption of the child.
Employees who have a child born or adopted prior to January 1, 2018 may still take leave on or after January 1, 2018 as long as they are otherwise eligible under the law and the leave is taken during the first 12 months after the birth or placement.
Caring for a close relative with a serious health condition
- A close relative is defined as:
- Spouse or Domestic Partner
- Parent or Parent In-Law
- A serious health condition is defined as 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.
Impending or Active Duty Deployment: 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.
What is NOT covered? Paid Family Leave cannot be used for one’s own disability or qualifying military event.
Employees Taking Leave
Employees must give thirty days’ notice of intent to take leave for a foreseeable leave. In the event of a non-foreseeable leave, the notice must be given as soon as practicable.
The employee must be returned to the same or similar position after their leave ends. Although, healthcare coverage must be continued during the leave of absence and employees will continue to pay the employee contribution, other benefits do not need to continue accruing while the employee is on leave. Again, employees cannot be required to take sick or vacation pay before using paid family leave, but the employee may elect to do so. Finally, retaliation for utilizing this leave, or the complaint mechanisms instituted by the law, is strictly prohibited.
Failing to comply with the law could subject an employer to penalties up to .5% of the employer’s weekly payroll plus an additional fine not to exceed $500. Furthermore, employers will be liable for payments and may waive their ability to collect contributions during the time they failed to collect. The state has also created an alternative dispute resolution process to adjudicate disputes.
New York employers should keep abreast of updates regarding this new law, make the required notices available to employees, and update employee handbook policies before January 1, 2018.