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New York Paid Family Leave

August 18, 2017

On July 19, 2017, Governor Cuomo announced final regulations implementing New York’s nation-leading Paid Family Leave (PFL) program. Nearly all private employees in New York State will be eligible for Paid Family Leave. Insurance coverage for Paid Family Leave must be available to employees beginning January 1, 2018, and generally will be included under an employer’s existing disability benefits policy.

The state’s PFL program will provide New Yorkers with job-protected, paid leave:

  • To bond with a new child.
  • Care for a loved one with a serious health condition or;
  • To help relieve family pressures when someone is deployed abroad on active military service.

Employees are guaranteed:

  • Wage replacement for 8 weeks in 2018, increasing to 12 weeks by 2021;
  • Job protection upon return from Paid Family Leave; and
  • Continuation of health insurance while out on Paid Family Leave.

The New York State Workers’ Compensation Board has issued a letter to all private employers in New York State regarding their responsibilities under the new law. The Board has also created a fact sheet for employers with additional details.

Eligibility

  • Employees with a regular work schedule of 20 or more hours per week are eligible after 26 weeks of employment.
  • Employees with a regular work schedule of less than 20 hours per week are eligible after 175 days worked.

Benefits

The benefits of this program initially offer up to 8 weeks of paid leave at 50% of the employee’s Average Weekly Wage (AWW), up to the maximum benefit of 50% of the New York State AWW. The program will be fully implemented on January 1, 2021, and will offer up to 12 weeks paid leave at 67% of the employee’s average weekly wages, up to the maximum benefit of 67% of the New York State AWW.

Paid Family Leave Benefit Schedule

Year Weeks Available

Max % of Employee
Average Weekly Wage

Capped at % of New York
State Average Weekly Wage
2018 8 50% 50%
2019 10 55% 55%
2020 10 60% 60%
2021 12 67% 67%

Rates & Funding for Paid Family Leave

PFL will be funded through employee payroll deductions. As an employer, you are responsible for collecting the appropriate PFL contributions to cover the cost of the program. You may begin employee payroll deductions for PFL as of July 1, 2017.The Department of Financial Services has set the rate for PFL at 0.126% of the employee’s weekly wage, not to exceed 0.126% of the current New York State AWW of $1,305.92.

For example, in 2018:

  • An employee who makes on average $1,000 a week would receive a benefit of $500 a week (50% of $1,000).
  • An employee who makes on average $2,000 a week would receive a benefit of $652.96, because this employee is capped at one-half of the New York State AWW. The SAWW is $1,305.92 in 2017. Fifty percent of the SAWW would mean the employee gets $652.96 per week on Paid Family Leave.

Employers can offer more generous paid leave benefits than required by law. Employers may submit their more generous plan to the NYS Workers’ Compensation Board for approval in lieu of obtaining the coverage required by law.

action items

  • Employers should contact their disability insurance carrier about obtaining Paid Family Leave coverage.
  • The New York State Insurance Fund (NYSIF) will distribute an employer census later this summer that must be completed for NYSIF to estimate premium for the paid family leave portion of the disability benefits policy. NYSIF will send a bill for the estimated PFL premium, which will be payable later this year.
  • Employees are entitled to be reinstated to their same or comparable job upon return from Paid Family Leave.
  • Failure to reinstate employees to their same or comparable job may leave employers exposed to discrimination and/or retaliation claims.
  • Employers must continue employees’ health insurance while they are on Paid Family Leave. Employers may require that employees continue to pay their health insurance premium contributions.
  • Employers must ensure that their employees are aware of the Paid Family Leave program and that their organizational policies comply with the law.
  • Employers must display a poster regarding Paid Family Leave coverage in their place of business, similar to Workers’ Compensation or Disability Benefits coverage.
  • If your organization is also required to provide FMLA, we suggest contacting your local Marsh & McLennan Agency representative to assist you with Leave Management solutions.

How BeneFIts Are Used

Maternity and Paternity Leave

A parent can use PFL to care for a child during the first 12 months following the birth, adoption, or fostering of that child.A parent may take family leave before the actual placement or adoption of a child if an absence from work is required for the placement to occur.

Caring for a Seriously-Ill Close Family Member

An employee can use PFL to care for a close family member with a serious health condition. A close family member includes a spouse, domestic partner, child, parent, parent-in-law, grandparent, and grandchild. A serious health condition is an illness, injury, impairment, or a physical or mental condition that involves:

  • Inpatient care in a hospital, hospice, or residential health care facility; or
  • Continuing treatment or supervision by a health care provider.

Ordinarily, conditions such as the common cold, the flu, ear aches, upset stomach, minor ulcers, routine dental or orthodontia problems, periodontal disease, etc. do not meet the definition of a serious health condition.

Active Military Duty Deployment

Employees can use PFL under military provisions of the federal Family Medical Leave Act when a spouse, child, domestic partner, or parent is on active duty, or has been notified of an impending call or order of active duty.
Employees can take leave to help out with obligations arising out of a call to duty—for example:

  • Making alternative child care arrangements for a child of the deployed military member;

  • Attending certain military ceremonies and briefings; and

  • Making financial or legal arrangements to address the military member’s absence.

Paid Family Leave, which provides wage replacement and job security, can be taken by employees who are also eligible for time off under the military provisions in the federal Family Medical Leave Act.

How BeneFIts Are Calculated

An employee’s average weekly wage determines the PFL benefit, with a benefit cap tied to the New York State Average Weekly Wage (NYSAWW).

In year one (2018) the benefit is calculated by taking total gross wages (including tips) over the 8-week period preceding the start of PFL, dividing by 8 and then multiplying by 50%.

Example 1: An employee who earns on average $1,000 a week would receive a weekly benefit of 50% of his or her weekly wages, resulting in a benefit of $500 per week.

Example 2: An employee who earns on average $2,000 a week exceeds the NYSAWW of $1,305.92. This employee would receive a maximum weekly benefit limited to $652.96, which is 50% of the NYSAWW.

Claim Procedures

When an employee has a foreseeable situation, they should provide their employer 30 days advance notice of their intention to use Paid Family Leave. If the event was not foreseeable, the employee must notify their employer as soon as practical.

An employee should submit a completed claim package to their employer’s Paid Family Leave insurance carrier within 30 days of their first day of paid leave. The insurance carrier must process the claim and issue a determination within 18 days.

A claim form will be available from an employer, the employer’s Paid Family Leave insurance carrier, or on the Paid Family Leave website.

Employers are also responsible for providing insurers with the dates that employees use Paid Family Leave.

Employee Documentation

When filing a Paid Family Leave claim, an employee must submit supporting documentation to the insurance carrier, as detailed as follows:

Childbirth

The documentation requirement for a claim for Paid Family Leave to bond with a newly born child depends on whether the applicant is the birth mother or the second parent.

The birth mother must submit a birth certificate, if available, or documentation of pregnancy or birth from a health care provider. The document must include the mother’s name and the child’s due date or birth date. The second parent must submit, if available, a birth certificate naming them as a parent. If a birth certificate naming the second parent is not available, the second parent may submit a Voluntary Acknowledgment of Paternity or a Court Order of Filiation naming them as a parent.

If those documents are not available, the second parent can submit birth documentation from the birth mother’s health care provider and either a marriage certificate or evidence of a civil union or domestic partnership to demonstrate the relationship to the birth mother.If none of these documents are available, the second parent may submit other documentary evidence of parental relationship to the child, to be evaluated on a case-by-case basis by the carrier.

Foster Care

A claim for Paid Family Leave to bond with a fostered child requires the submission of a letter of placement issued by a county or city department of social services or local voluntary agency. If a second parent is not named in documentation, a copy of the document plus a document verifying the relation to the parent named in the foster care placement will be needed.

Adoption

A claim for Paid Family Leave to bond with an adopted child requires a court document finalizing adoption, or, for Paid Family Leave taken before the adoption is complete, a document showing that the adoption process is underway. Examples of proof of a pending adoption include a signed statement from an attorney, adoption agency, or adoption-related social service provider that the employee is in the process of adopting a child.If the second parent is not named in that document, they must also file documentation verifying the relationship to the parent named in the adoption.

Serious Health Condition

A claim for Paid Family Leave to care for a family member with a serious health condition requires a medical certification, completed by the care recipient’s health care provider.An authorization for personal health disclosure form is required by the HIPAA Privacy Rule and must be completed by the care recipient and retained on file with the health care provider in order to submit the required medical information.

Active Military Duty Deployment

A claim for Paid Family Leave to assist loved ones when a family member is deployed abroad on active military duty generally requires either a PFL-5 “Military Qualifying Event” certification or a US Department of Labor “Certificate of Qualifying Exigency for Military Family Leave.” Those forms include (1) military documentation of the family member’s deployment or impending deployment (active duty orders or other notice from the military), and (2) documentation of the reason for leave.

Frequently asked Questions

Who must obtain PFL coverage?

Private employers who have one or more employees and are required to provide New York disability benefits insurance must obtain PFL coverage. As a result, any employee that is currently covered under NY DBL should also be provided with PFL coverage.

Do out of state employers need to offer PFL?

An employer with employees working in New York for 30 or more days in a calendar year must obtain Paid Family Leave coverage. Family Leave is a benefit for people who work in New York; it does not matter where the employer is headquartered or where the employee lives. For example:

  • An employee who works from their home in New York is covered even if the employer is located outside of New York State.
  • An employee that is required to travel occasionally into New York State to perform duties, such as a salesperson, will not be considered a New York State employee unless the employment is based in the state.
  • An employer that is located outside of New York State does not need to cover employees who live in New York but work outside of New York.

Are Public Employers/Unions required to provide PFL?

A public employer may opt into Paid Family Leave by submitting an application and plan to the New York State Workers’ Compensation Board, along with providing notice to its employees at least 90 days before collecting employee contributions.A labor union may collectively bargain with a public employer to offer Paid Family Leave benefits. The agreedupon plan must then be submitted to the New York State Workers’ Compensation Board for approval. The plan must be “at least as favorable” as the statutorily mandated Paid Family Leave benefits. Once an agreement is reached, written notice must be provided to the Chair of the Workers’ Compensation Board, including a list of employees and coverage information.A collective bargaining agreement for Paid Family Leave may provide rules that differ from the Paid Family Leave regulations. Where the agreement does not provide a different rule, the Paid Family Leave regulations will apply.

What if our disability carrier does not contact us?

Disability carriers were provided the option to opt-out of providing PFL benefits. If you have not been contacted by your current DBL carriers, we suggest contacting your local Marsh & McLennan Agency representative.

Who pays for PFL Coverage?

PFL is payable by the employer through employee-funded payroll deductions.

Who is eligible for PFL?

Employees must be employed by a covered employer at the time they apply for Paid Family Leave. Employee eligibility requirements are as follows:

  • Employees with a regular work schedule of 20 or more hours per week are eligible after 26 weeks of employment.
  • Employees with a regular work schedule of less than 20 hours per week are eligible after 175 days worked.

Citizenship and immigration status do not impact a worker’s eligibility for Paid Family Leave.

Farm laborers are not eligible for DBL and as a result, will not be eligible for PFL.

Are Part-time employees eligible for PFL?

Yes. Employees who work less than 20 hours a week will become eligible after 175 days of work. If they work 20 or more hours a week they will become eligible after 26 consecutive weeks of work.

Who would be considered a close relative?

  • Spouse
  • Domestic partner
  • Child
  • Parent
  • Parent-in-law
  • Grandparent

What would be considered a serious condition?

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves:

  • Inpatient care in a hospital, hospice, or residential health care facility; or
  • Continuing treatment or continuing supervision by a health care provider.

What would not be considered a serious condition and therefore not qualify for Paid Family Leave?

Includes not but limited to:

  • Cosmetic treatments such as plastic surgery
  • Common cold
  • Flu
  • Ear aches
  • Upset stomach
  • Minor ulcers
  • Routine dental
  • Periodontal disease

Do I have to take deductions from my employees?

While PFL is referred to as an employee-funded benefit in the law, employers may opt to pay for PFL premiums on behalf of their employees.

When can I begin deducting PFL from my employee’s paychecks?

Employers may begin employee payroll deductions for PFL as of July 1, 2017.

Can multiple employees working for the same employer take PFL to case for the same individual?

If the employees work for the same employer, PFL can be denied to one or more employee(s) if a claim is submitted to case for the same individual, at the same time. However, if the employees work for different employers, they will be eligible to take PFL at the same time, even if it is to case for the same individual.

Do we need to continue health insurance for an employee while they are on PFL?

Yes. Also, you may require that employees continue to pay their health insurance premium contributions.

Can an employee take PFL and use their sick and/or vacation time together so they may receive their full salary?

Yes, employer may allow their employees to use sick and/or vacation time during Paid Family Leave.

Must an employee use both temporary disability benefits and PFL?

An employee is eligible to use disability benefits and PFL, such as following the birth of a child, can opt to use both benefits if they are not taken at the same time. Total leave cannot exceed 26 weeks in any 52-week period.

Can an employee collect PFL while receiving workers’ compensation benefits?

No. Employees who are out of work on workers’ comp cannot receive PFL benefits. Employees receiving reduced earnings may be eligible for PFL.

Does PFL run concurrently with FMLA?

If an employer is subject to FMLA, there may be situations where FMLA and PFL are provided concurrently.

Can I allow employees to take their PFL in daily increments?

Yes. Unlike DBL, employees are allowed to take their PFL in daily increments.

Does the employer pay an employee’s salary on PFL?

No. An employee will receive benefit payments from the insurance carrier while on PFL. If the employer decides to pay the employee’s full salary, the employer may request reimbursement from the insurance carrier for the PFL benefit the employee would have received.

Can an employee take PFL for their own condition?

No, PFL is coverage for conditions that are experienced by a close family member which includes, a spouse, domestic partner, child, parent, parent-in-law, grandparent, and grandchild.

Can an employee take PFL during pregnancy?

Paid Family Leave only begins after birth. It is not available for pre-natal conditions.

What if an employee does not expect to work with an employer long enough to qualify for PFL?

The employee may opt out of paying Paid Family Leave payroll contributions by completing a waiver of benefits form. This waiver is optional, and an employer may not require that an employee sign a waiver. Employees who complete a waiver will not contribute to Paid Family Leave through payroll deductions and will not be eligible to take Paid Family Leave. If the employee’s schedule changes and will be expected to qualify for Paid Family Leave, the waiver is automatically revoked and the employee is responsible for paying any required Paid Family Leave contributions from the first day of employment. In addition, employees whose regular work schedules are temporary or seasonal may, in limited circumstance, opt out of Paid Family Leave.

Does an employee continue to accrue Paid Time Off while out on PFL?

An employee is not entitled to continue to accrue Paid Time Off while out on Paid Family Leave, but the law and regulations do not prohibit the employer from allowing the employee to continue accruing leave.

What if an employee has not been employed for more than 26 weeks and begins working less than 20 hours per week?

They will become eligible after 175 days worked. The average weekly wage for the employee is calculated by adding up their pay for the last eight weeks and dividing by eight.

What if an employee has more than one job?

Employees who hold more than one job may take Paid Family Leave from both jobs, but they must do so with both employers at the same time.

What happens when an employee changes employers?

He or she must re-establish eligibility with the new employer.


Additional Information
For more information regarding Paid Family Leave, please refer to the following New York State and carrier resources:


This document is intended to inform Marsh & McLennan Agency LLC clients and employers on general information relating to their employee benefit plans and related topics. It is based on general information available at the time of preparation from the sources listed below and should not be relied upon to provide either legal or tax advice. Marsh & McLennan Agency LLC shall have no obligation to update this publication and shall have no liability to you or any other party arising out of this publication or any matter contained herein. Before making a decision as to whether or not to implement or participate in implementing any welfare, pension benefit, or other program, employers and others should consult with their benefits, tax and/or legal advisor for advice that is appropriate to their specific circumstances.If you have any questions regarding your specific plans, please contact your MMA Employee Benefits Specialist.Sources:
  • New York State Insurance Fund
  • http://ww3.nysif.com/
  • https://www.ny.gov/programs/new-york-state-paid-family-leave
  • http://www.nysif.com/Flipbook/Advisor/WCA3Q2017/NYSIF3Q2017WCA.html
  • Zywave: https://www.brokerbriefcase.com/contentdetails/137635/