New York Paid Family Leave Law: Details, Details and More Details

By Christopher Caldari | Employee Benefits Consultant and Dan Kuperstein | Senior Vice President, Compliance
8.29.2017 - Corporate Synergies

The law requires employers to allow workers to take paid leave for certain family situations…and protects the employee’s job.

Employers in New York need to begin preparing now for big changes coming January 1, 2018, when the New York Paid Family Leave (NYPFL) benefit goes into effect. The NYPFL law is being called one of the most comprehensive paid family leave programs in the nation. The law requires employers to allow employees to take paid job-protected leave for events such as tending to a family member with a serious health condition, bonding with a new child or addressing the needs of a family member who has been called to active military service. During any period of NYPFL, employers must maintain the employee’s existing health benefits for the duration of the leave period as if the employee had continued to work.

During leave, employees receive 50% of the state average weekly wage for up to eight weeks in 2018; this will increase incrementally to 12 weeks and 67% of the state average weekly wage by 2021. Currently, the average weekly wage is $1,305.92, which means the maximum weekly pay that employees can receive while on leave is $652.96 for 2018.

What kinds of eligibility and notice requirements are in the NYPFL law?

An employee is eligible for this new paid family leave if they work a regular schedule of 20 or more hours per week and they’ve worked for their current employer at least 26 weeks before the first full day of leave. Employees who work fewer than 20 hours each are eligible after 175 workdays.

Prior to starting leave, employees have to give the employer at least 30 days’ advance notice.

Also, employees may have to submit a special PFL-1 Form to their employer’s insurance carrier or to their employer if the plan is self-insured. Depending on the reason for leave, the employee may also have to provide medical certification of the family member’s condition or have a family member submit to a medical exam.

In most cases, as permitted by the law, employers will be requiring employees to contribute the entire premium for the benefit.  The employer also may choose to fund it themselves, and in certain unionized workplaces, the CBA contract may require full contribution by the employer. The opportunity to fund the program (whether through employee deductions or self-funding) actually began July 1, 2017, a full six months before the start of the benefit; however, this opportunity is voluntary – contributions to the program are not required until January 1, 2018.

Contributions toward the cost of NYPFL insurance are calculated on a weekly basis. The amount of the contribution is set at 0.126% of an employee’s average weekly wage or the statewide average weekly wage, whichever is less. The maximum contribution is $1.65 per employee per week, or $85.56 per employee per year.

What’s the difference between paid family leave and disability leave?

The NYPFL and the New York State Disability Benefit are different benefits that can work together, but the monetary benefits cannot be paid to the employee at the same time. Specifically, an employee can combine both laws’ leave periods for a total of 26 weeks of leave in a 52-week period—eight weeks of NYPFL and 18 weeks of disability—if they qualify for both.

However, there are some details to watch for: under NYPFL law, paid leave can’t be used for an employee’s own disability. Additionally, employees can’t receive paid leave benefits (i.e., monetary benefits) and disability benefits at the same time. The NYPFL regulations do, however, clarify that an employee may receive disability benefits or NYPFL benefits during the same post-partum period, but not concurrently.

What’s the difference between paid family leave and paid time off?

Unlike with the Family and Medical Leave Act (FMLA), an employer can’t require an employee to first use accrued paid time off (PTO) before NYPFL goes into effect, though they can give the employee the option to use PTO in lieu of the NYPFL benefit.

However, if an employee plans to use NYPFL and Family and Medical Leave Act (FMLA) leave at the same time, if the employer is subject to federal FMLA rules (for 50+ employees), and if the employee is eligible for leave under both laws, then the employer’s FMLA policy dictates how PTO is used. This is an interesting twist: in other words, if an employee is eligible for both FMLA and NYPFL, then the employer can mandate the use of accrued, unused PTO first.

Paid family leave is not FMLA

The most important difference between New York Paid Family Leave and FMLA is that NYPFL pays 50% of an employee’s average wages and FMLA does not. In addition, each program has different requirements. FMLA applies to employers with 50 or more employees within a 75-mile radius of the worksite at which the employee is employed, while NYPFL applies to any New York company with one or more employees, and applies only to those employees actually working in the state. An employee must work at least 1,250 hours in the 12 months before FMLA leave; NYPFL requires an employee to work 26 weeks before taking leave.

What employers should do to prepare

The new state paid leave law goes into effect January 1, which gives your organization a few months to prepare. First, review your current leave policies in your employee handbook, collective bargaining agreement, plan document and summary plan description, and determine how the NYPFL policy will work with these policies. It may work alongside these policies, or the company may need to make changes to them, but these existing policies should be reviewed.

Further, regardless of how your existing policies may change, the NYPFL law requires employers to maintain a new employment policy (whether within, or outside of, the existing employment policies) that explains all of an employee’s rights and obligations under the NYPFL, including information on how to file a claim for paid family leave.

Next, determine when your organization will pay for the NYPFL contributions. If you’d like employees to contribute early, that is, before January 1, 2018, then introduce the program to them and begin deductions. Finally, regardless of when contributions start, communicate with your employees so that they know that the deduction will be taken, how much will be deducted from their pay, and ensure that they understand how the benefits will work when they go into effect in 2018.