The New York Workers Compensation Board has issued revisions to its proposed rules for implementation of the New York Paid Family Leave Law (“PFLL”).
As we previously reported, the Board issued initial proposed rules for implementation of the PFLL in February 2017. The current revisions, which were issued on May 24, 2017 following the Board’s review and assessment of comments received on the initial proposed rules, are subject to a new 30-day comment period before either additional revisions are issued or final rules are published.
The revisions add to, elaborate on, or, in some cases, substantively amend the initial proposed rules on a variety of topics including calculating employee eligibility and overlap of the PFLL with other types of employee leave. Among the highlights of the recently revised proposed rules are:
- Independent contractors, as well as certain livery and black car operators, clergy and ministers, persons “engaged in a professional or teaching capacity in or for a religious, charitable or educational institution,” and other specified individuals, are expressly excluded from the definition of a covered “employee” under the PFLL.
- The distinction between “full-time” and “part-time” employees for purposes of acquiring eligibility under the PFLL—which under the initial proposed regulations was based on a five-days-per-week vs. fewer than five-days-per week schedule—has been eliminated and replaced to account for employees with compressed work schedules that may work fewer days but longer hours. Under the revisions, employees who regularly work less than 20 hours per week will become eligible for paid family leave on the 175th day of such employment and employees who work 20 or more hours per week will become eligible for paid family leave on the 26th consecutive work week of employment.
- The revisions also amend the section on PFLL waivers to track the above changes, now stating that employees: (i) who work 20 hours or more per week but will not work 26 consecutive weeks in a 52 week period; or (ii) who work less than 20 hours per week but will not work 175 days in a 52 week period, may file a waiver of paid family leave benefits.
- The revisions clarify that when any employee (regardless of hours worked per week) takes paid family leave in daily increments, that employee’s maximum period of paid leave is calculated based on the average number of days the employee works per week, with a cap of 60 days per year for employees who work at least five days per week. As had been the case under the initial proposed rules, all employees taking paid family leave in weekly increments will be eligible for the maximum number of weeks of leave in any 52 consecutive week period.
- While not a substantive change from the initial proposed rules, the revisions now expressly state that leave designated under the Family and Medical Leave Act (“FMLA”) for an employee’s own serious health condition does not reduce the amount of paid family leave to which the employee is entitled in the same 52 consecutive week period. However, as previously set forth in both the PFLL statute and in the initial proposed rules, an employee may not receive more than 26 combined weeks of statutorily-required disability benefits (for his or her own medical condition) and PFLL benefits during the same 52 consecutive week period.
- The revisions also make clear that if an employer designates a period of FMLA leave for a reason covered under the PFLL and notifies the employee of his/her eligibility under the PFLL but the employee declines to apply for payment, the employer may nevertheless count the period of leave against the employee’s maximum PFLL benefit.
- The revisions modify the employee notice requirements for paid family leave taken on an intermittent basis. While under the initial proposed rules, an employee was only required to provided notice of the need for intermittent paid family leave one time, the revisions now permit employers to require such employees to provide notice as soon as practicable before each day of intermittent leave.
- The proposed revisions expand on the interplay of an employee’s other available paid time off with leave under the PFLL, apparently seeking to align the provisions of the PFLL with those of the FMLA. Specifically, the revisions include a new provision stating that “[a]n employer covered by the FMLA that designates a concurrent period of family leave under [the PFLL] may charge an employee’s accrued paid time off in accordance with the provisions of the FMLA.” This means that, under the proposed revisions: (i) if leave under the PFLL is designated to run concurrently with FMLA, then the FMLA rules regarding the ability to require an employee to charge available paid time off (and therefore receive full salary) may be applied to PFLL leave; but (ii) if leave under the PFLL is not designated to run concurrently with FMLA—whether because the employer is not covered by the FMLA or the employee does not otherwise meet the FMLA’s eligibility requirements—then an employee may choose, but may not be required, to charge available paid time off to leave under the PFLL in order to receive full salary during the leave period.