The New York Paid Family Leave Law (PFLL) has been described as “the nation’s strongest and most comprehensive Paid Family Leave policy.” When fully implemented, it will provide eligible employees with up to 12 weeks of paid leave for a qualifying event. Although the PFLL does not take effect until January 1, 2018 and will not be fully implemented until 2021, many employers are already taking steps to prepare.
What Is the PFLL?
Under the PFLL, employers are required to maintain family leave insurance funded by employee payroll deductions. At or around the time of a qualifying event, eligible employees submit claims to their covered employer’s family leave insurance carrier for payment.
What Is a Qualifying Event?
Generally, eligible employees may use Paid Family Leave for three reasons, or qualifying events:
- To bond with a newborn, foster or adopted child. However, eligible employees must take Paid Family Leave within 12 months of the child’s birth or placement.
- To provide care for a spouse, domestic partner, child, parent, parent-in-law, grandparent or grandchild with a serious health condition.
- For a qualifying military exigency, such as the active-duty deployment of a spouse, domestic partner, child or parent.
Who Is a Covered Employer, Eligible Employee or Covered Family Member?
Employers and human resource professionals will undoubtedly notice that New York’s PFLL applies in many of the same circumstances covered by the federal Family and Medical Leave Act (FMLA). The FMLA requires covered employers to provide eligible employees with 12 weeks of unpaid leave in a 12-month period for the birth or placement of a child; to care for a spouse, child or parent with a serious health condition; or to care for the employee’s own serious health condition. The FMLA also requires employers to provide eligible employees with 26 weeks of unpaid leave for a qualifying military exigency.
Although there are similarities, coverage under the PFLL is not coextensive with coverage under the FMLA. Generally, the FMLA only applies to individuals or entities who employ at least 50 employees. With few exceptions, the PFLL applies to individuals or entities who employ at least one employee.
Typically, only an employee who has worked for a covered employer at a qualifying worksite for at least one year, and who worked at least 1,250 hours in the 12 months preceding leave is eligible to take FMLA leave. An employee may gain eligibility for Paid Family Leave after working for a covered employer for less than six months, regardless of how many hours he or she worked during that time. More specifically, under the PFLL individuals who regularly work more than 20 hours per week gain eligibility to take Paid Family Leave after 26 weeks of employment with a covered employer, and those who regularly work less than 20 hours per week become eligible after 175 working days of employment with a covered employer.
Further, the reasons an employee may take leave under the FMLA are slightly different than the qualifying events under the PFLL. Notably, under the PFLL an employee generally may not take Paid Family Leave to care for their own serious health condition or for the birth of their own child. The PFLL also employs a broader definition of family member than the FMLA. Under the PFLL an eligible employee may take Paid Family Leave to care for a grandparent, parent-in-law or domestic partner in addition to those individuals covered by the FMLA.
What Are Employers’ Obligations?
Although family leave insurance is paid for by employee payroll deductions and employees are responsible for submitting claims, employers still need to prepare. The PFLL requires covered employers to provide employees with notice of their rights under the law. As such, employers are required to update their handbooks and post an appropriate notice of employee rights in a conspicuous place. The PFLL requires employers without written handbooks to provide employees with written notice of their rights.
Covered employers are required to maintain Paid Family Leave insurance, funded by employee payroll deductions. An employer should work with its disability insurance carrier to ensure that it has appropriate coverage. In addition, as of July 1, 2017, employers are permitted to take appropriate payroll deductions to fund family leave insurance premiums, and they should work with their payroll processors to ensure that they are prepared to make and track appropriate deductions. Improper deductions include those that exceed the maximum amount allowed by law or that exceed the amount required to fund family leave insurance. An employer also is required to furnish premiums to the family leave insurance carrier. Employers may be liable under the PFLL for failure to maintain appropriate insurance or for making improper deductions.
Employers should ensure their administrators and human resource professionals are familiar with the PFLL. While an employee is required to provide his or her employer with sufficient notice of a qualifying event, at least initially, he or she is not required to expressly invoke the PFLL. In light of this, human resource personnel must be able to identify situations that qualify for leave, charge that leave to the applicable leave entitlement(s) and provide the employee with appropriate notice. Employers are also required to complete certain paperwork when they receive requests for leave under the PFLL and should develop systems to track leave that account for the various reasons why employees may use leave under state and federal law.
To ensure compliance with the PFLL’s mandates, employers operating in New York should carefully review their policies, contact their insurance carriers, work with their payroll administrators and train their personnel to implement appropriate procedures and systems.