As the beginning of the school year draws nearer, some school districts around New York state are considering whether they would like to participate in coverage for their employees under the Paid Family Leave Act (“Act”), which will begin providing coverage for eligible employees effective January 1, 2018.  Although the vast majority of private employers are required to provide benefits under the Act, public employers, including school districts, have instead been given the option of “opting in” to voluntary coverage.

Some school districts have already received requests from their employee unions to bargain regarding the decision to opt in to voluntary coverage.  School districts should generally evaluate these requests just as they would requests to bargain regarding any other subject, and in compliance with their existing collective bargaining agreements and the Taylor Law.  However, given the untested nature of the law, a school district’s caution in considering such a proposal would be justified.  There are a number of unanswered questions about how the provisions of the Act would apply to special considerations at play in school districts.  For example, it is well established that teachers accrue seniority credit only for paid teaching service within their tenure areas.  How will partially compensated time off provided under the Act be treated when calculating seniority?  The answer to such a question is not immediately clear. The Paid Family Leave Regulations, provide that public employers can unilaterally opt in to voluntary coverage for employees who are not represented by a union, or can negotiate regarding a decision to opt in to coverage for employees who are represented by a union.  12 NYCRR §380-10.  In the event a public employer currently provides disability benefits, but decides to not offer paid family leave benefits, the public employer must notify its employees and the Workers’ Compensation Board of this decision no later than December 1, 2017.

Given this uncertainty, school districts are prudent to carefully research and evaluate the potential (and sometimes otherwise unforeseen) consequences of any proposal for Paid Family Leave Act coverage.  These considerations can provide for thorough analysis at the bargaining table and help to avoid unexpected headaches in the future.