On Wednesday, July 19, New York adopted final Paid Family Leave law (NY PFL) regulations, which take effect immediately. Beginning January 1, 2018, NY PFL will provide eight weeks of benefits at 50% salary rate, with increased benefits over the next four years, to employees who need to miss work:
- to care for a family member with a serious health condition;
- to bond with a newborn or newly placed foster or adopted child; or
- due to a qualifying exigency arising from a family member’s military service.
For background on this law, please review ReedGroup’s prior posts found here. After two rounds of public comments, the board issued the final regulations, along with a discussion regarding the comments it received. Highlights include:
PFL Definitions (Section 355)
Clarification has been provided to confirm that a day in which an employer is closed or shut-down is still considered a day of paid family leave.
The Workers’ Compensation Board also received several comments requesting clarification to the definition of eligible employee, specifically whether employees living outside of NY are eligible for PFL benefits. The Board clarified that an employee is eligible for NY PFL if some of his/her work is based in or controlled from New York or if the employee lives in New York. (WCL § 201(6)(C))).
The Board will provide additional examples and clarity on its webpage as eligibility issues arise.
Eligibility (Subpart 380-2)
The regulations allow NY PFL to be funded by employee payroll deductions. The Board has clarified that employers may begin deductions as of July 1, 2017, but are not required to. Additionally, the Board received several comments asking the board to clarify that the withheld payroll deductions cannot be used for a purpose other than NY PFL; this was confirmed.
The Board received and responded to several inquiries about how the regulations apply to part-time employees and those with irregular work schedules. Specifically, the Board reiterated that employees who regularly work less than 20 hours per week become eligible for paid family leave on the 175th day of such employment, and employees who work 20 or more hours per week become eligible for paid family leave on the 26th consecutive work week of employment. The Board further clarified that “such consecutive weeks may be tolled during periods of absence that are due to the nature of that employment, such as semester breaks, and when employment is not terminated during those periods of absence.”
The final regulations include amendments to this section that provide calculations for computing an employee’s PFL benefit rate when taken in single-day increments. The Board has confirmed that an employee’s average weekly wage can include fractions to properly convert the wages from weekly to daily.
Although no changes were made to the regulations, the Board clarified that disability leave taken in 2017 will count toward an employee’s maximum duration of PFL and disability benefits in a 52-week period, as the 52-week period is computed retroactively from each day leave is requested. Therefore, during the first year of PFL implementation (2018), the 52-week look-back period will extend into 2017.
The waiver provision, subpart 280-2.6(a), was amended to state that employers ‘shall’ provide employees who qualify to sign a PFL waiver rather than ‘may,’ making it a requirement rather than an option. However, the decision whether to waive remains with the employee.
Reinstatement (Subpart 380-8)
The Board was asked to clarify what a same or comparable position means within the regulations and whether it is intended to mirror ‘same or equivalent’ under the FMLA. The Board states it will issue further guidance on this but made no changes to the regulation.
What Employers Must Do Now
Covered New York employers should have a compliant PFL plan in place and ready to go by January 1, 2018. Keep in mind that the state of New York does not offer a state-administered plan. All affected employers are responsible for creating a plan that is either self insured or insured by a third party.
What ReedGroup Is Doing
If you are using ReedGroup’s leave management services or software we are:
- preparing to implement NY PFL administration for employers who self insure;
- training staff; and
- updating our internal and external compliance materials, including LeaveAdvisor™.
We at ReedGroup would love to share our resources with you. Please contact us if you’re interested in NY PFL or other absence management services.