The New York Workers Compensation Board has issued a proposed rule for implementation of the statewide Paid Family Leave Law (“PFLL”), which goes into effect on January 1, 2018.

As we previously reported, the PFLL will require employers to provide all eligible full- and part-time employees with paid, job-protected leave to: (i) care for a newborn or newly adopted or placed child; (ii) care for a family member with a serious medical condition; or (iii) deal with certain exigencies arising when a family member is called to active military service.  The amount of leave and payment percentages available under the PFLL will be phased in, beginning in January 2018 with 8 weeks of paid leave at a rate of 50 percent of the individual’s average weekly wage (up to a designated cap), and culminating in 2021 with a requirement to provide up to 12 weeks of paid leave at a rate of 67 percent of the individual’s average weekly wage (again subject to a cap).  The program will be funded entirely through employee payroll deductions.

The Workers Compensation Board’s proposed rule—which is subject to a 45 day comment period before final publication—addresses a range of issues regarding the implementation of the PFLL that were left unanswered by the statutory text. Perhaps most helpful for employers, the proposed rule fills in many of the blanks regarding how paid family leave (“PFL”) will interact with leave otherwise covered under the federal Family and Medical Leave Act (“FMLA”).  The FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave for several covered purposes, three of which—caring for a newborn or newly adopted or placed child, caring for a family member with a serious medical condition, and managing military service-related exigencies—are also covered under the PFLL. Notably, however, while the federal FMLA requires unpaid leave for an employee’s own serious medical condition, New York’s PFLL will not apply to such leave (although leave for an employee’s own medical condition may be covered under the New York Short Term Disability law).

Among the highlights of the proposed rule:

• employers would be permitted to begin implementing the necessary wage deductions for employee contributions under the PFLL as early as July 1, 2017, for coverage beginning on January 1, 2018.

• several key terms under the PFLL are defined, including “average weekly wage” (for purposes of calculating benefit amounts) and “serious health condition.” The definition of a “serious health condition” under the proposed rule tracks the definition of that term under the FMLA.

• the term “fifty-two consecutive weeks” (for purposes of defining the 12-month period for calculating how much PFL an employee has available at a given time) would be defined as “52 consecutive weeks or calendar weeks . . . computed retroactively with respect to each day for which benefits are currently being claimed.” Thus, the proposed rule establishes a tracking method that mirrors the FMLA’s “rolling backwards” method (in which the 12-month period for determining how much FMLA leave an employee has available is measured backwards from each time an employee uses FMLA leave).

  • As a result, employers currently using one of the other permissible methods for calculating the 12-month period under the FMLA (e.g., calendar or fiscal year, employee anniversary date, or the “measure forward” method) could experience administrative challenges in tracking leave that qualifies under both the PFLL and FMLA. The use of different tracking systems for PFL and FMLA leave may also result in employees being able to “stack” leave time for purposes that are covered under both the PFLL and the FMLA and extend the total amount of job-protected leave available for a single covered event. For example, if an employer uses a calendar year method for FMLA tracking, an employee on leave for a family member’s serious health condition may exhaust PFL in December of a given year using the PFLL’s rolling backward method but will receive a new allotment of FMLA leave on January 1, which can then continue to be used for the same covered event (so long as proper certification is provided to the employer as required).

• “part-time employees” would be defined under the PFLL as those on a work schedule of less than five days per week. Part-time employees become eligible for PFL on the 175th day of such regular employment, whereas full-time employees become eligible for PFL after 26 consecutive work weeks of employment.

• for purposes of calculating the 26 week/175 day eligibility threshold for PFL benefits, approved vacation, sick, personal or other time away from work would be counted so long as the employee is still making contributions to the cost of PFL benefits during that time. However, periods of temporary disability under the New York Short Term Disability law would not count toward determining PFLL eligibility. The proposed rule further states that an employee may not receive both short term disability and PFL benefits for the same period of time and is entitled to a combined total of 26 weeks of short term disability and PFL benefits during the same period of 52 consecutive weeks.

• a waiver would be available for any employee whose regular work schedule is less than 26 weeks or 175 days in a 52 consecutive week period and therefore would never meet the minimum PFLL eligibility requirement. The waiver would exempt the employee from the obligation to make contributions to the cost of PFL benefits and would also exempt the employer from the obligation to provide PFL benefits for the employee so long as long as the waiver remains in effect. The waiver would be deemed revoked within 8 weeks after any change in the employee’s regular work schedule that would require the employee to continue working for 26 weeks or 175 days in a 52 consecutive week period. The employee would then be required to begin making the necessary contributions for PFL coverage, including any retroactive amounts due from date of hire.

• maximum PFL usage by part-time workers taking PFL in single-day increments would be reduced based on the average number of days the employee works per week relative to a full 5-day work-week. So, for example, for calendar year 2018, a part-time employee who works 3 days per week would be eligible for single-day PFL usage equal to 60% (or three-fifths) of the 40 day/8 week total available to full-time workers. Thus, part-time employees working 3 days per week would be eligible for a maximum of 24 days in any 52 consecutive week period. Part-time employees taking PFL in weekly increments would be eligible for the maximum number of weeks of leave in any 52 consecutive week period (e.g., in 2018, a total of 8 weeks in any 52 consecutive week period) just as full-time employees.

• similar to the FMLA, PFL entitlement for the birth, adoption or foster placement of a child would expire at the end of the one year period following the birth, adoption or placement. An otherwise eligible employee whose child is born or placed before January 1, 2018 would still be eligible to take PFL starting on January 1, so long as any PFL for such purposes concludes within 12 months after the birth or placement.

• employees seeking to take PFL would be required to provide notice to their employers on the same terms as required under the FMLA. For foreseeable leave, an employee would be required to provide the employer with at least 30 days advance notice before leave is to begin. If 30 days advance notice is not practicable for reasons such as a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice would need to be given as soon as practicable.

• for employees entitled to receive family leave benefits under a collective bargaining agreement, the employer is relieved of providing PFL benefits so long at the CBA provides for benefits “at least as favorable” as those set forth in the PFLL.

• employers would be required to provide written notice to employees of their rights and obligations under the PFLL in their employee handbook or written leave policy or, if the employer does not currently have a written handbook or policy describing leave provisions, would be required to separately provide written guidance to all employees regarding the PFLL. The proposed rule also establishes a notice posting requirement, in a form to be determined by the Chair of the Workers’ Compensation Board.

• employers who fail to provide PFL coverage would be liable for a fine up to 0.5% of weekly payroll during the lapse, and an additional sum of up to $500. If an employer fails to provide coverage and an employee takes family leave, the employer would be liable for the payment of the benefits in full and would waive the contribution amount for that time. If an employer fails to continue health insurance benefits for an employee during PFL, such employer would be liable for the employee’s medical costs during the time of PFL.

• claim-related disputes under the PFLL, including claim denials and allegations that employers failed to maintain appropriate PFL insurance, would be subject to arbitration pursuant to a process set forth under the regulations.

Comments on the proposed rule will be accepted through April 7, 2017. Comments may be submitted online.

Along with the issuance of the proposed rule, the state has also launched a new website highlighting key details of the PFLL for both employers and employees.  The state has also implemented a Paid Family Leave Helpline (1-844-337-6303) to answer questions about the program.