On April 4, 2016, New York Governor Andrew Cuomo signed legislation adopting a paid family leave policy for New York employees (the “Paid Family Leave Law”). The Paid Family Leave Law will provide paid leave for employees to take care of a new child or a close relative with a serious health condition or deal with exigent matters when a family member is called to active military service. The Paid Family Leave Law does not replace or supersede the federal Family and Medical Leave Act (FMLA), and employers should understand the interplay between the two laws.
Importantly, the Paid Family Leave Law is funded entirely by employees, not employers. The Paid Family Leave Law is mandatory for all private employers in New York State. Public employers may opt in to the program. Whereas the FMLA requires employers with 50 or more employees to provide unpaid leave to those who have worked 1,250 hours within the 12 months preceding the leave, the Paid Family Leave Law will require almost all New York employers, regardless of size, to provide paid leave to employees who have been employed full-time for 26 weeks or part-time for 175 days at the time they apply for leave benefits.
Unlike the FMLA, the Paid Family Leave Law does not entitle an employee to take leave for his or her own medical issues. There are three circumstances in which an employee is eligible for leave under the Paid Family Leave Law. First, an employee is entitled to leave during the first 12 months following the birth, adoption or fostering of a child. Second, an employee is entitled to leave to care for a child, spouse, domestic partner, parent, grandchild, grandparent, or parent of a spouse or domestic partner who is experiencing a serious health condition. Third, an employee is entitled to leave when his or her child, parent, spouse or domestic partner is on or called to active duty in the U.S. armed services and the employee needs to attend official armed forces events, provide parental or child care on behalf of the service member, or make financial or legal arrangements for the service member. Notably, if an employee qualifies for leave under both the FMLA and the Paid Family Leave Law, he or she must use leave under both statutes concurrently and cannot stack the leaves for longer leave time.
The Paid Family Leave Law will be phased in over four years. Eligible employees will receive a portion of their weekly earnings during a qualifying leave period, subject to a New York State average weekly wage (NYSAWW) cap. In 2018, employees will receive up to eight weeks leave at the lesser of 50 percent of the employees’ weekly earnings or 50 percent of the NYSAWW. In 2019, employees will receive up to 10 weeks leave at the lesser of 55 percent of the employee’s weekly earnings or 55 percent of the NYSAWW. In 2020, employees will receive up to 10 weeks leave at the lesser of 60 percent of the employees’ weekly earnings or 60 percent of the NYSAWW. From Jan. 1, 2021 on, employees will receive 12 weeks leave at the lesser of 67 percent of the employee’s weekly earnings or 67 percent of the NYSAWW.
As mentioned above, the Paid Family Leave Law is funded entirely by employees. Employers were allowed to begin collecting premiums on July 1, 2017, for the 2018 benefit year. Employees’ weekly contributions have been set at the lesser of 0.126 percent of an employee’s average weekly wage or the NYSAWW. For employees who make more than the current NYSAWW of $1,305.92, the employee contribution will be capped at $1.65 per week. The NYSAWW is calculated annually, so employee contribution amounts may increase in the future.
Although employers will not fund any portion of the program, they should begin preparing now for the Paid Family Leave Law to go into effect. Employers will need to update their handbooks, post the legally required notices in the workplace, coordinate with their insurance and payroll administrators to obtain and pay for family leave insurance, and train their human resources administrators in processing requests for leave and coordinating benefits under the Paid Family Leave Law, FMLA, and New York State disability laws and regulations. Employers that fail to comply with the Paid Family Leave Law risk incurring monetary penalties.
Article originally appeared at: MD News September/October 2017, Central New York Edition