May 26, 2020

Reminder: New York Paid Family Leave Is Now In Effect

Did you get your first request for paid family leave yet?  Well it’s finally here – New York State’s Paid Family Leave law finally touched down in workplaces across the state on New Year’s Day.  As of this writing, millions of New York employees are now entitled to eight weeks of paid family leave benefits and the job protection rights that come along with it.  This is a significant development for the State, legally and culturally.  Employers have spent many months preparing (and we’ve spent many months helping them prepare) for the new law’s arrival and now it’s time to execute on those implementation plans.

We wrote extensively about the new law and its interpreting regulations here.  We encourage you to read or revisit that post as it serves as a guide for employers seeking to comply with the new law.  For specific questions, please feel free to contact us directly.  And stay tuned as we will be updating this blog with new developments in the coming months.  In the meantime, for those of you who are getting a bit of a late start, here is a brief summary of the new entitlement and what is required to comply.

Law Basics

  • Paid Family Leave is available to care for a family member with a serious health condition, to bond with a newborn or newly-placed adoptive or foster child, or to address a qualifying exigency relating to a spouse, partner, child or parent who is on active military duty.

  • Paid Family Leave covers nearly every New York State Employer – even those with just a few employees. There are very few exceptions.

  • This year, employees are entitled to up to 8 weeks of partially-paid, but fully job-protected leave. In subsequent years, the leave entitlement will grow to 12 weeks.

  • Employees who work more than 20 hours per week are eligible for Paid Family Leave benefits after 26 weeks of employment. Employees who work less than 20 hours per week are eligible after they have worked 175 days. Employees who will never meet these eligibility criteria have the option to waive Paid Family Leave coverage.

  • Paid Family Leave is funded through employee contributions at the rate of 0.126% of an employee’s annual wage, capped at an annual maximum of $85.56.

  • Leave benefits are administered through the employer’s insurance program, or directly through the employer, if self-insured.

Compliance Steps:

  1. Insurance Coverage – It is critical that if you haven’t done so already, that you obtain PFL coverage from your insurer, similar to the way in which you’ve secured disability coverage under New York’s Disability Benefits Law (DBL). The PFL coverage will typically be attached as a rider to your DBL policy.

  2. Payroll and Accounting – Make sure your payroll provider is taking deductions from employees who have not opted out of the contribution requirement. While you were permitted to start making deductions last summer, as of January 1, 2018, you are required to make these deductions.  You must also make sure you are completing tax forms to properly account for any benefit payments.  Again, this process is similar to how you would complete tax forms when an employee receives disability benefits.  There is guidance on the tax issues available here.

  3. Employees – You should educate your employees about the new law in several ways, including by:

    1. Updating your employee handbook to add a PFL policy, while integrating it with your other leave policies, or by creating a standalone PFL policy, distributed to all employees.

    2. Providing waiver forms to employees who you do not expect will become eligible to receive benefits. The waiver form is available here.

    3. Notifying your employees about the new law, including the new deduction that they will begin to see on their earnings statements.

    4. Providing employees with a statement of rights when you learn they are taking a leave that would qualify under this new law, which is similar to the requirement to provide such a notice when they may be eligible for disability benefits.

  4. Training – This is yet another critical component of the implementation process, and includes making sure that all:

    1. Managers are aware of the new law so they can recognize leave requests and notify HR (or make sure the employee notifies HR) accordingly.

    2. HR personnel, or whoever is responsible for leave management, understands how to properly administer leave requests and track use of leave. This law differs from FMLA and requires employers and employees to complete forms and provide information that is distinct from what is required by the FMLA. At the same time, PFL leave requests often will overlap with other types of leave requests such as the aforementioned FMLA, but also paid sick leave and paid parental leave, so leave managers will have to make sure they understand how each of these leave entitlements work together and that all paperwork is completed and distributed properly.

Conclusion

The new PFL law adds yet another layer of complexity to the leave management responsibilities of New York State employers.  It is a significant new law that employers must account for as they manage their workforce on a going forward basis.  Further, employers should not expect the leave entitlement train to come to a complete halt here.  Indeed, New York City employers will be faced with two new requirements regarding caregiver accommodations and safe time later this year, which we will be commenting on separately.  Thus, now more than ever, employers must make sure that their staff is aware of their leave entitlements, and that their leave administrators are well-equipped to handle all leave requests.

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TRENDING LEGAL ANALYSIS


About this Author

Brie Kluytenaar, Mintz Levin, New York, Employment Relations Lawyer, Arbitration Attorney
Practice Group Associate

Brie represents a wide range of companies and has consistently achieved successful results for clients in fields including financial services, health care, technology, hospitality, media and cultural organizations. She has extensive experience resolving the many issues employers face throughout the employment life cycle, including counseling employers on hiring, terminations, reductions in force, internal investigations, wage and hour issues, disability and accommodations, statutory leave, and compliance with the rapidly-changing employment regulatory landscape.

Brie also has...

212.692.6251
Michael S. Arnold, Mintz Levin Law Firm, Labor Law Attorney
Member / Chair, Employment, Labor & Benefits Practice

Michael Arnold is Chair of the firm's Employment, Labor & Benefits Practice.  He is an employment lawyer who deftly handles a wide array of matters. His capabilities include counseling on everyday HR life cycle issues, defending management and senior executives in connection with employment-related proceedings, and assisting companies navigate the complex employment issues that arise in transactions.  Michael’s clients appreciate his strong emphasis on providing not just legal advice, but also practical advice, that aligns with organizational and HR strategies while reducing exposure. He also prides himself on being user-friendly, responsive, and strategic.

When Michael is not with a client, he’s out there leading the Firm’s Employment, Labor and Benefits Section.  He is still quite active blogging for Mintz’s award-winning Employment Matters Blog, where he currently serves as an Editor and where he’s twice been named a top author by JD Supra (2016 and 2017). His peers seem to like him too as they have recognized him consistently; first he was included on the New York Super Lawyers Rising Star List in 2012 and then included among the New York Super Lawyers List from 2013 through the present.

More specifically, here is what Michael is practicing on a day to day basis:

  • Counseling on issues related to the HR life cycle (recruiting, staffing, performance, including evaluations and PIPs; engagement, retention, separation, including reduction in force; post-separation, including employee mobility issues), and compliance with discrimination, wage and hour, family and medical leave, workers’ compensation and disability, and other employment laws and regulations.
  • Investigating and reporting on employee complaints, including sexual harassment and discrimination complaints, and assisting management resolve other employee relations issues.
  • Conducting anti-discrimination/harassment and other HR and legal issue-based training seminars regarding legal requirements, best practices, and risk mitigation.
  • Auditing and assisting in the development and implementation of employment policies, procedures, and practices.
  • Representing management and senior executives in connection with a variety of complex employment litigation matters, including pre-trial, trial and appellate work; administrative discrimination charges and other agency proceedings (including EEOC, NYSDHR, NYCCHR, DOL, WCB); and arbitrations and mediations relating to wage and hour, discrimination, restrictive covenants, contract, and other employment-related disputes, including collective and class actions.
  • Drafting and negotiating employment-related agreements and policies, including offer letters, employment and consulting agreements, restrictive covenant agreements, separation agreements, and employee-related regulatory disclosures.
  • Representing clients in connection with corporate transactions and bankruptcy proceedings, including conducting employment-related due diligence and negotiating employment-related warrants and representations and related employment transaction documents.
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