By Noreen DeWire Grimmick, Esq.
An important piece of new legislation was executed by Gov. Andrew Cuomo in April 2016 providing paid family leave.
Paid leave will be phased in over a 4 year period beginning in Jan. 1, 2018. To be eligible, employees must work a minimum 26 consecutive weeks prior to applying for paid leave.
Paid leave may be taken to provide care to a family member suffering from a serious health issue; to bond with a child during the first 12 months after birth, adoption, or foster care placement; or to attend to obligations because a spouse, parent, or child is on active duty or has been notified of a pending call into active duty in the U.S. armed forces.
Notably, this law does not provide coverage for an employee’s own serious health condition, but that event would likely trigger already existing disability insurance coverage and is, of of course, subject to FMLA under federal law.
Phasing in of these new regulations begins in 2018. Employees who qualify for paid leave under the act will be entitled to 50 percent of their pay (with a pay cap equal to 50 percent of the statewide weekly average pay) for a period of 8 weeks. When fully phased in, in 2021, eligible employees will be entitled to 12 weeks of paid leave at 67 percent of their weekly pay (capped at 67 percent of the statewide average weekly pay).
Intermittent paid family leave is also available under the new law.
This legislation will impact more employers in New York state than the FMLA. All employers who fall under the scope of the state Workers Compensation Law will be obligated to provide paid family leave. New York employers may either self-insure for paid leave, or they may purchase an insurance policy from their disability benefits carrier to finance paid leave. This program is financed similarly to the way that workers’ compensation benefits and disability benefits are financed, through payroll deductions.
Obviously there are some similarities with the federal family leave program as to what constitutes a qualifying event, but there are, of course, some very important distinctions as well. More employers will fall within the scope of the paid family leave program in New York state then under the FMLA.
Further, unlike the FMLA which requires a 12 month period of employment to be eligible for time off for a qualifying event, as previously noted, the time period for eligibility for paid leave in New York is shorter. Under the New York paid family leave law, a full time employee is eligible for paid family leave 26 weeks from the date of hire.
A part-time employee is eligible after working 175 days.
Since New York employers have several more months to prepare for these changes, it is recommended that they become familiar with the legislation, train their personnel, and modify their procedures and policies to be in compliance when the law goes into effect on Jan. 1, 2018.
Already, some employers have likely begun payroll deductions to finance paid family leave. It is important to note that employers are prohibited from discriminating or retaliating against an employee who uses paid family leave. Employees who take paid family leave are entitled to have their health care insurance continued during their leave, and they must be returned to comparable employment upon return to the work place.
Accrual of certain other benefits, such as seniority, during paid leave is not required under the law, however. Employee notices will be required, similar to workers’ compensation and other programs.
Grimmick is a partner with the Hodgson Russ law firm at 60 Railroad Place, Saratoga Springs.