New York State recently passed the Paid Family Leave Benefits Law, which is among the strongest and most comprehensive leave statutes in the country. The new law amends the State’s current disability law, and imposes obligations on employers beginning in 2018. Unlike the federal Family and Medical Leave Act (“FMLA”), the NY law will provide both protected leave and paid benefits during the leave. The new law covers employers in the for-profit sector, with at least one employee, along with certain other employers in the public and not-for-profit sectors.
Beginning on January 1, 2018, employers will be required to provide employees, who have worked for the employer for at least 26 weeks, initially with up to eight weeks of paid family leave, for the following purposes: (a) provide care (physical or psychological) to a family member (i.e., employee’s child, spouse, domestic partner, parent (including step-parent or legal guardian), parent-in-law, sibling, grandchild, or grandparent; (b) bond with a child during the first twelve months after birth or after the placement of the child for adoption or foster care with the employee; (c) to handle certain qualified exigencies arising from an employee’s spouse, domestic partner, child, or parent being on or called to active duty in the U.S. armed forces. In comparison to the eligibility requirements of the FMLA, which protects individuals who have completed at least one year of employment and 1,250 hours of work prior to taking leave, employees under the NY law would become eligible in approximately half the time.
The amount and extent of paid, job-protected family leave available to employees will be phased in over time. In 2018, an employee will be eligible to receive 50% of his/her average weekly wage, capped at 50% of the statewide average weekly wage. In 2019 and 2020, the length of paid, job-protected leave will extend to 10 weeks, with an employee receiving 55% and 60% of his/her average weekly wage (capped at 55% and 60% of the statewide average weekly wage), respectively. By 2021, employers will be required to provide 12 weeks of paid, job-protected leave, with an employee receiving 67% of his/her average weekly wage, capped at 67% of the statewide average weekly wage. The Superintendent of Financial Services has discretion to delay increases in the benefits above, based on a variety of factors.
Under the new law, employees will be able to take paid family leave intermittently (i.e., for less than a full work-week). Such leave may be taken in increments of one full day, or one fifth of an employee’s weekly benefit. At the end of the leave period, an employee will be entitled to reinstatement to the employee’s same or comparable position.
Employers may permit employees who have accrued but unused vacation or personal time available to them to elect to use such time and receive full pay. As with the FMLA, the employer must maintain an employee’s health benefits throughout the leave period. Employers may require paid leave under the State law to run concurrently with FMLA leave.
The new law also includes anti-retaliation provisions, and imposes penalties upon employers who fail to comply with the law’s requirements. In addition to court litigation, the chair or the Workers’ Compensation Board, who has jurisdiction to enforce the new law, may compel alternative dispute resolution through what appears to be a separate tribunal or proceeding.
The paid leave will be funded entirely by minimal employee payroll deductions, and is being promoted by the Governor’s office as having no cost to employers. Yet, the “no cost” advertisement does not include challenges that small employers likely will encounter to comply with the statute, given that the law covers all employers in the for-profit sector. Nonetheless, we anticipate that employers may face operational challenges in terms of implementing payroll deductions, preparing and distributing new policies to address the requirements of the law, reviewing existing policies to ensure they are consistent with the law, and working with insurance carriers, as needed.
For answers to any questions regarding this blog, or with regard to paid leave generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.