On July 19, 2017, the New York Workers' Compensation Board adopted final regulations for the state's new Paid Family Leave Law ("PFL"). The final regulations are a follow-up to the Board's proposed regulations  issued on May 24, and include two important clarifications concerning employees’ total benefit and eligibility..

The final regulations slightly alter the method for calculating an employee's average weekly wage when an employee takes leave in daily increments, rather than on a weekly basis. An employee’s average weekly wage, or “AWW” as defined by the new regulations, determines how much benefit pay the employee will receive while out on leave. The AWW is measured by the employee’s previous eight weeks of wages. Under the proposed regulations, it was unclear if an employee’s average weekly wage would include those weeks that an employee took partial leave. If a week of partial leave was included in the calculation, it would lower the employee’s AWW, and therefore, lower their benefit pay. The final regulations clarify that the week an employee takes leave should not be included when calculating AWW. As a result, employee’s benefit pay for individual days of leave will not be diminished by a reduced average weekly wage.

The final regulations also modify leave eligibility for certain employees. Under the new PFL law, newly-hired employees will be eligible to take leave after 26 consecutive weeks of employment. The proposed regulations did not clarify how the “consecutive weeks” qualification would operate for employers who have regularly scheduled breaks, such as semester breaks for private school teachers or university professors. The final regulations make clear that an employer’s regularly scheduled break does not interrupt the “consecutive weeks” calculation. Instead, the consecutive week calculation may be paused, or “tolled,” “during periods of absence that are due to the nature of” the particular employment. The same is true for a newly-hired employee’s use of “scheduled vacation time.” A new employee’s use of “personal, sick or other time away from work” still counts towards an employee’s consecutive “days worked” in employment.  Therefore, a newly-hired employee will be able to take vacation time without jeopardizing their PFL eligibility.

Employee waivers are also addressed in the final regulations. Specifically, the regulations require employers to give leave-ineligible employees the right to file a “waiver of family leave benefitsIf an employee’s regular employment schedule is below certain thresholds, they will not be eligible for Paid Family Leave benefits. Ineligible employees include workers whose regular employment schedules are: (1) less than 20 hours per week and less than 175 days a year; or, (2) employees who will not work for 26 consecutive weeks. For these employees, employers must provide the employee with the right to file a waiver. The earlier proposed regulations stated that employers could give employees the right to file a waiver; the final regulations make it an employer requirement. An employee who signs such a waiver will not see any paycheck deductions for PFL purposes.

Despite these changes and other minor alterations, the basic provisions of the new PFL program remain unchanged. Employees will be eligible to take leave on January 1, 2018. Additional guidance is expected as implementation draws closer. For example, the PFL law requires that employees returning from Paid Family Leave be “restored” to a “comparable position,” but the law does not define what a “comparable position” is. The Workers’ Compensation Board stated that it will issue guidance concerning this definition at some point.