As you know by now, New York has a new Paid Family Leave law (NY PFL) that will begin offering employees benefits as of January 1, 2018. ReedGroup has written about this upcoming law in the past, and you can find the background here. Proposed regulations were issued in February, and final regulations were expected this month. However, on May 24, New York’s Workers’ Compensation Board, the agency that will enforce the NY PFL law, issued revised proposed regulations and addressed the 117 comments and questions it received regarding the original proposed regulations. ReedGroup is one of the entities that submitted comments to the original proposed regulations.

The revised proposed regulations are open for public comment for another 30 days, thereby pushing out the anticipated date of the final NY PFL regulations. The summary of the revised proposed regulations offers helpful insight into the final regulations, and we encourage employers with New York employees to review them in preparation for January 1, 2018 compliance. Employers can begin withholding employee contributions to NY PFL starting July 1, 2017. Final regulations addressing employee contributions can be found here.

Highlights of the revised proposed regulations include:

Eligibility: The definitions of part-time and full-time employees have been changed and clarified:

  • employees who work 20 hours or more become eligible for NY PFL after 26 weeks; or
  • employees who work fewer than 20 hours become eligible after 175 days of work.

Calculation of Maximum NY PFL Duration: The calculation of maximum NY PFL benefits depends on whether the leave is taken in weekly or daily increments.

  • Continuous leave: An employee taking family leave in weekly increments will be eligible for the maximum number of weeks of leave in any 52-consecutive-week period;
  • Daily leave: When any employee takes family leave in daily increments, the employee’s maximum period of paid family leave is calculated based on the average number of days worked per week. For example, an employee that works three days per week will receive:
    • on January 1, 2018, the equivalent of three days per week for eight weeks, or a maximum of 24 days in any 52-consecutive-week period
    • on January 1, 2019, the equivalent of three days per week for ten weeks, or a maximum of 30 days in any 52-consecutive-week period
    • on January 1, 2021, the equivalent of three days per week for 12 weeks, or a maximum of 36 days in any 52-consecutive-week period.

Waiver: Allow those employees who will not become eligible for PFL within a reasonable amount of time to avoid paying for a benefit they will not receive.

Concurrency With FMLA: If an employer designates a period of leave to be covered by the FMLA for a reason for which the employee is also eligible to take NY PFL benefits, and the employee declines to apply for NY PFL benefits, the employer may count the period against the employee’s maximum NY PFL leave in a 52-week period.

Language Translation: New York’s Workers’ Compensation Board will translate NY PFL forms and notices into 7 languages, and insurance carriers and self-insured employers need only make “reasonable efforts” to offer language translation services to claimant employees beyond the board’s translated documents.

Employee Contributions During PFL Leave: An employer can deduct PFL contributions while an employee is receiving PFL benefits (this is also true when an employee is receiving New York Disability Benefits Law [NY DBL] benefits).

The above are just a few of the many changes to the original proposed regulations. In addition to the information in the revised proposed regulations, a New York Workers’ Compensation Board representative responded directly to some of ReedGroup’s submitted comments:

ReedGroup Q: Does a self-insured plan have the option to provide benefits to employees who would not typically qualify as eligible employees under the regulation (for example, an employee who has only worked for 13 weeks rather than 26 weeks)?

A: Yes. The requirement is that the benefits be at least as favorable as the statute. If the plan would like to offer PFL benefits to an expanded group, or enhanced benefits, it may do so as long as the PFL benefits provided are at least as favorable as what’s required in the statute.

Q: Are employees who are eligible for both NY DBL benefits and NY PFL during the same 52 consecutive weeks entitled to the full job protection provided by PFL (8 weeks) regardless of whether they are receiving pay benefits? For example, an employee collects 24 weeks of DBL pay benefits and 2 weeks of PFL pay benefits. Is the employee entitled to an additional 6 weeks of job protection under PFL, even though he or she will not be receiving PFL pay benefits?

A: The job protection provisions of the paid family leave program go hand in hand with the leave. These provisions mean that a person is entitled to the protection of their job because they took paid family leave – their job is protected while they are out on paid family leave. They are not separate benefits.

Q: Is the carrier or third-party administrator required to continue PFL payments upon an employee’s termination or voluntary resignation?

A: No. When an employee’s employment ends, so does his or her eligibility for PFL.

ReedGroup will continue to monitor the state of New York for the issuance of final regulations. In the meantime, we encourage employers, carriers, and consultants to use the revised proposed regulations as further guidance in preparing for January 1, 2018, compliance. ReedGroup is already hard at work analyzing the proposed regulations so that as soon as final regulations are published, we’ll be able to hit the ground running to configure our software, roll out training, and update our internal and external compliance materials, including our web-based tool, LeaveAdvisor.  

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