Beginning on January 1, 2018, the New York Paid Family Leave law (NYPFL) will require nearly all private employers in the State of New York to offer Paid Family Leave (PFL) to employees to help them bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is called to active military service. PFL provides employees with wage replacement benefits, continued health insurance, and job protection upon return from PFL.
Who Is Eligible
Employees who work 20 or more hours per week are eligible for paid family leave after 26 weeks of employment; and
Employees who work less than 20 hours per week are eligible after 175 days of work (not calendar days).
Wage Replacement Benefits
As of January 1, 2018, eligible employees may receive up to 50 % of their average weekly wage, or New York’s Average Weekly Wage (AWW), whichever is lower, for up to 8 weeks, directly from the New York State Insurance Fund. These benefits will increase incrementally over the next three years, and by 2021, when PFL is fully phased in, the maximum benefits will be 67% of an employee’s average weekly wage or AWW for up to 12 weeks.
In general, eligible employees may take the maximum benefit length in a certain 52-consecutive week period as dictated by law. The 52-consecutive week period begins (a) for births, on the date of birth, and (b) for adoption or foster care, on the date of placement or on the first day leave is taken if such absence is required for placement to proceed.
Employers may permit employees to use sick or vacation time so they may receive 100% of their pay while on PFL, but cannot require them to use sick or vacation leave before using PFL benefits.
Health Insurance Continuation
Employees will be allowed to continue receiving health insurance from their employers while on paid family leave; but employers can require employees to continue paying their health insurance premium contributions during this time.
The NYPFL is intended to be funded exclusively by employees through payroll deductions. In 2018, the maximum weekly deduction will be 0.126% of an employee’s weekly wage, up to a cap of the annualized AWW.
Waiver of PFL Benefits
Employees who are not eligible to take PFL can choose to waive PFL benefits in order to avoid PFL payroll deductions. Employees may waive PFL benefits only if:
An employee will not work 26-consecutive weeks (when the employee’s regular work schedule is 20 or more hours per week); or
An employee will not work 125 days in a 52-consecutive week period (when the employee’s regular work schedule is less than 20 hours per week
Within eight weeks of any change in the regular work schedule of an employee, requiring the employee to work beyond the respective 26 weeks or 175 days, the employee’s waiver will be deemed revoked, and the employee will be obligated to begin making PFL contributions, as soon as the employee is properly notified. These contributions will include any retroactive amounts due from the date of hire, as specified under the NYPFL.
Checklist: What You Need to Do Now
• Ensure you have Paid Family Leave Coverage
⟩For most employers, PFL coverage can be added to your existing disability insurance policy. If you are self-insured for disability, you may purchase a separate Paid Family Leave policy or apply to self-insure.
⟩For a list of insurers offering Paid Family Leave policies, visit the PFL section of the Department of Financial Services website
• Post a Workforce Notice
⟩Obtain a Notice of Compliance from your insurance carrier stating you have obtained PFL insurance. If you are self-insured, you can get this notice by contacting the Board at Certificates@wcb.ny.gov to obtain the required notice.
⟩Post and maintain this notice in a conspicuous place.
• Update your Policies
⟩Employers are required to update their handbook or written leave of absence policies to provide employees with written guidance on PFL, including, but not limited to, their rights and obligations under PFL, and information on how to request leave.
⟩Updated policies should also address how the PFL will interact with existing leave laws, such as the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), the New York State Human Rights Law, and New York City’s Paid Sick Leave law.
⟩Employers should update their forms to ensure that they properly notify employees going on leave of the concurrent designation of FMLA and PFL leave.
⟩In the absence of an employee handbook or other written policies, employers should prepare written guidance for employees concerning their rights under the NYPFL.
• Update Your Processes
⟩Employers who plan to require employee contributions should update their internal payroll process to calculate and collect the appropriate employee payroll withholdings.
⟩Notify your employees when payroll deductions for NYPFL benefits will begin. (Although such notification is not required under the law, we recommend that employers do so prior to implementation).
⟩Put in place internal procedures for ensuring PFL forms are properly completed. o Ensure Human Resources personnel are appropriately trained on how to comply with the new law.
• Inform Non-Eligible Employees About Waivers
⟩Identify employees who will not qualify for the minimum amount of time required for eligibility and notify them in writing that they can choose to waive coverage so they do not have to pay for a benefit they will not receive.
⟩Employers should collect and retain all written waivers.
⟩Waivers are revoked once an employee becomes eligible based on time worked, at which point PFL employee contributions can begin.
• Review Collective Bargaining Agreements
Determine what impact, if any, the NYPFL may have on contractual obligations, and consider whether you must address the NYPFL in future contract negotiations.
If you are a New York employer and have not already taken steps to comply with the new PFL law, you should do so immediately. Please contact Jackie Piscitello (firstname.lastname@example.org) or Gina Wodarski (email@example.com) if you require assistance with developing a new paid family leave policy, amending your current policies, or to otherwise ensure compliance with the new PFL statute and regulations.
This publication should not be construed as legal advice or a legal opinion on any specific facts or circumstances not an offer to represent you. It is not intended to create, and receipt does not constitute, an attorney-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal questions you may have. Pursuant to applicable rules of professional conduct, portions of this publication may constitute Attorney Advertising.