New York’s Paid Family Leave Law Takes Effect January 1, 2018

December 2017

As we previously reported, employers were permitted to take payroll deductions beginning in July 2017 to fund paid family leave benefits under New York’s Paid Family Leave Law (“NY PFL”), which is scheduled to take effect on January 1, 2018. The following is a summary of the final regulations issued by the New York State Workers’ Compensation Board.

Full and Part-Time Employees are Covered (and May Use PTO to Reach Coverage Threshold)

Under the final regulations, both full and part-time employees are covered under the NY PFL. Under the NY PFL, a full-time employee is one who works 20 or more hours per week for 26 consecutive weeks, while a part-time employee is one who works fewer than 20 hours per week, and works for at least 175 days in a 52-week period. Further, any vacation, personal, sick or other paid time off taken by full and part-time employees will count towards the consecutive requirements above, as long as the time off is subject to NY PFL payroll deductions. However, periods of temporary disability are ineligible for NY PFL coverage purposes.

Waivers Must Be Offered to Ineligible Employees

If an employee will not be eligible for NY PFL benefits because they will not work for 26 consecutive weeks or 175 days in a consecutive 52-week period, that employee must be offered a waiver of benefits relieving them from the obligation to make NY PFL payroll contributions.

Within eight weeks of any change in the regular work schedule of an employee that requires the employee to work for 26 consecutive weeks or 175 days in a consecutive 52-week period, any waiver shall be deemed revoked. If that occurs, then the employee is obligated to begin making NY PFL contributions, including any retroactive amounts due from their date of hire, as soon as the employer notifies them of such obligation.

Coordination with FMLA Leave and Accrued PTO

Leaves covered by both the Family and Medical Leave Act (“FMLA”) and NY PFL may run concurrently as long as employers: (1) notify eligible employees that their time off is designated as leave under both the FMLA and NY PFL; and (2) provide the employee with the required FMLA notice and certification forms. If an employer does not provide the requisite notice, the employer waives the right to have PFL run concurrently with FMLA leave. Importantly, leave taken for an employee’s own serious health condition under the FMLA may not be counted against his or her paid family leave entitlement. Note also that an employer that designates paid family leave as FMLA leave may also charge an employee’s accrued PTO under the FMLA and the employer’s FMLA policy.

If an employee elects to utilize accrued PTO or other paid parental leave benefits in lieu of NY PFL benefits, an employer may seek reimbursement from its insurance carrier for family leave benefits, so long as the employer requests reimbursement prior to the insurer paying out such benefits.

Deductions from Pay

An employee’s payroll contribution is 0.126% of their weekly wage, with a cap of 0.126% of the state average weekly wage, which for 2018 is $1,305.92. Given those figures, an employee’s maximum weekly payroll contribution in 2018 is $1.65. [LM1] These numbers will be adjusted annually by the Superintendent of Financial Services. As noted above, employers were allowed to take these deductions starting on July 1, 2017.

Notification Requirements: Handbooks and Posters

Employee handbooks must be updated to provide written guidance concerning the NY PFL, including an employee’s rights and obligations under the NY PFL. Even if an employer does not provide a handbook, the employer must still provide written guidance to its employees about the NY PFL. Further, all employers must provide posted notice of the NY PFL. If you maintain Workers’ Compensation Insurance, your carrier can provide you with compliant notice. If you are self-insured, you can contact [email protected] to obtain the required notice.

New York’s Paid Family Leave Law: Recommendations for Employers

January 1, 2018 is right around the corner and employers should, to the extent they have not already, take steps to ensure compliance. This includes: (1) updating handbooks; (2) amending leave policies to incorporate NY PFL benefits; (3) providing notice of the forthcoming NY PFL deduction; (4) providing ineligible employees with the opportunity to opt out of NY PFL deductions; and (5) planning to provide employees with notice of the NY PFL on or before January 1, 2018.

For more information on this issue or other employment matters, please contact:

Carol M. Goodman at [email protected] or +1 212 592 1465

© 2017 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.