New York Paid Family Leave Law: What You Need to Know

New York employers of all sizes, including real estate property managers and owners, are grappling with a game-changing paid family leave law that has the potential to permanently alter the employment landscape. Under the New York Paid Family Leave Act, effective as of Jan. 1, 2018, employees can take up to eight weeks of paid family leave due to a “qualifying event” and receive 50 percent of their average weekly wage during that time. This mandatory paid leave is radically different in scope and effect from the Family Medical Leave Act, which applies only to employers with 50 or more employees and guarantees up to 12 weeks of unpaid leave in a 12-month period. In order to minimize potential risks to your business, you should be aware of how this new paid leave law works and the affirmative steps you need to take when dealing with this significant and burdensome regulation.

Who Is Eligible and What Are the Benefits?

All employers covered by the New York Workers’ Compensation Law are covered, regardless of the number of employees. Full-time employees who work a regular schedule of 20 hours or more per week are eligible after 26 consecutive weeks of employment. Part-time employees who work a regular schedule of less than 20 hours per week are eligible after working 175 days (which do not need to be consecutive). “Qualifying events” under the law are limited to the following:

• Bonding with a child during the first 12 months of its birth, adoption, or fostering;
• Caring for a close relative with a serious health condition; and
• Assisting with family situations that arise when an employee’s spouse, parent, child, or domestic partner is or is about to be deployed abroad on active military service.

A “close relative” is a domestic partner, spouse, child/stepchild, parent/stepparent, parent-in-law, grandchild, and grandparent. A “serious health condition” is an illness, injury, or impairment, or a mental or physical condition that involves inpatient care (in a hospice, hospital, or residential care facility) or continuing treatment/supervision by a health care provider.

As an example, one of your property managers informs you that she wants to take paid family leave to bond with her newly adopted son within the first 12 months of his adoption. That would be a “qualifying event” under the Paid Family Leave Law.

In 2018, an eligible employee can take paid leave for up to eight weeks. Coverage will expand to 10 weeks in 2019 and 2020, and 12 weeks in 2021. An employee can take the leave all at once or in full-day increments.

An employee is entitled to 50 percent of his average weekly wage in 2018 during his leave period. That will increase to 55 percent in 2019, 60 percent in 2020, and 67 percent in 2021. The percentage cap is New York’s average weekly wage (which is currently $1,305.92). As an example, your supervisor wants to take time off in 2018 to care for his elderly hospitalized mother. He makes $500 a week and would thus receive a benefit of $250 a week on leave. As another example, your property manager makes $2,000 a week and wants paid leave in 2018. Her benefit is capped at $1,305.92—she would be entitled to $652.96 a week (50 percent of $1,305.92).

An employee is guaranteed continued health insurance during her leave. An employee must, however, continue to pay her portion of the premium while on leave.

How You Obtain Coverage/Fund Benefits

Unless you self-fund, you must obtain a Paid Family Leave policy through a private insurer or through the New York State Insurance Fund. Payroll deductions to satisfy policy premiums are not required. If you do choose to fund through payroll deductions, the 2018 payroll deduction (which will be adjusted annually) is 0.126 percent of the weekly wage and is capped at a maximum of $85.56. If an employee earns less than the average weekly wage ($1,305.92 in 2018), her contribution is less than the cap. For example, your superintendent, who makes $27,000 per year or $519 per week, will have a payroll contribution of 65 cents per week.

How It Works

Your superintendent seeks paid family leave to care for his hospitalized elderly mother. What is the process for requesting/granting such leave? He must notify you at least 30 days before the leave, if the leave is foreseeable. If not, he should notify you as soon as possible. He will need to obtain the requisite leave forms from either you, your insurance carrier, or from New York State, including the Request for Family Leave Form (Form PFL-1). Once he gives you the Form PFL-1, you have three business days to fill it out and return it to him.

He will then submit the forms—along with the supporting documentation—to your insurance carrier. The request must be submitted before the leave starts or within 30 days after the start of the leave. Your insurance carrier will then have 18 days to either pay or deny the request. If a request is denied, your insurance carrier should have its own internal dispute resolution process.

Compliance Tips

Be aware that an employee’s right to request and thereafter take paid family leave is protected from discrimination and retaliation. An employee is entitled, when taking paid family leave, to be restored to the same position she held before the leave or to a comparable position with comparable employment benefits. You must take the following actions in regard to the new law:

• Update your employee handbook to include guidance on the new law on an employee’s rights and how to file a claim. If you don’t have a handbook, provide your employees with written materials that provide guidance; and
• Post a notice concerning the law (in a form approved by the Workers’ Compensation Board) in a conspicuous place for your employees and applicants. This requirement is similar to the other labor law posters you post in a break room or in a lobby.

You should also be aware, among other things, that:

• Paid Family Leave will run concurrently with the Family Medical Leave Act when the reason for the requested time off qualifies under both laws. Eligible employees must apply for each leave separately;
• Employees cannot receive short-term disability and Paid Family Leave benefits at the same time;
• Employees cannot receive Workers’ Compensation Benefits and Paid Family Leave benefits at the same time;
• You have the option of whether employees can continue to accrue sick/vacation time while on leave;
• You have the option, if two spouses/domestic partners work for you, to limit paid family leave to one employee at a time to take it for the same “qualifying event”; and
• You have the option as to whether employees can use accrued time with their family leave benefits in order to get full pay during their leave.

In light of the Paid Family Leave Law, employers will face new challenges in balancing their productivity and staffing levels with their employees’ personal needs. When in doubt, reach out to your lawyer for guidance in navigating this new arena.