Aug 10, 2017

Finalized state paid family leave regulation released

The New York State Workers’ Compensation Board last month released the final version of its paid family leave regulation. The Workers’ Compensation Board made several administrative changes to the regulation, but no substantive changes were made. As a final regulation, there is no comment period, and the regulations went into effect upon publication. The PFL regulation has an effective date of Monday, Jan. 1, 2018, and the duration of benefits is phased in until 2021, when it will require almost every private employer to provide 12 weeks of paid leave.

The finalized regulation clarified several points, including how semester breaks work for instructors who are eligible for benefits. The final version kept the majority of the key elements that were presented in the first and revised drafts. These include the definitions of covered employer and eligible employee, as well as how PFL coverage will work in conjunction with DBL and FMLA leaves.

Beginning on the effective date, all disability-benefits policies also will include PFL coverage in the disability policy, and every employee covered by their employer’s disability-benefits policy are automatically covered for PFL, regardless of whether or not the employer has updated their policy.

On the effective date, any private employer with one or more employees will be required to provide PFL benefits for an eligible employee. Public employers may opt in and provide PFL benefits. Employees, regardless of their full- or part-time status, become eligible after they have worked the requisite number of days or weeks. An employee who works 20 or more hours a week becomes eligible for benefits after 26 consecutive weeks of employment. Any employee who regularly works less than 20 hours a week becomes eligible for benefits after the 175th day of employment. 

PFL is designed to be completely funded by the employees. A covered employer purchases PFL coverage through their DBL carrier, and collects employee contributions up to the maximum allowed by law from the employees. The employee contributions are to be used by the employer to pay for the PFL portion of their DBL/PFL premium. The weekly employee contribution for 2018 is .126 percent of employees’ weekly wages capped at the New York state average weekly wage, which was $1,305.92 in 2016. This means the maximum contribution that can be deducted from an employee in 2018 is $1.65 per week.

PFL allows for eight weeks of paid leave beginning Jan. 1, which increases to 10 weeks in 2019, and finally to 12 weeks in 2021. Benefits are paid by the disability insurance carrier of the employer at the rate of 50 percent of the average weekly wage in 2018, 55 percent in 2019 and 2020 and caps out at 67 percent in 2021.

PFL allows an employee to take leave to care for or bond with a child after birth, placement or adoption; care for a family member who has a serious health condition; or for a qualified exigency due to a family member being called to active duty in the military. Noticeably absent from the qualifying reasons is the employee’s own serious health condition. An employee cannot take PFL for their own health condition. However, if an employee takes a designated FMLA leave for their own serious health condition, it does not reduce the amount of PFL an employee is eligible for.

One other key factor in how PFL is administered is who grants the leave. The employee applies for PFL benefits directly to the employer’s disability carrier. The employer must complete one section of the application before the employee submits the claim to the carrier. The disability carrier makes the final determination of whether PFL is granted, and cannot deny a claim solely because the employer failed to complete their section of the claim form.

For more information, see PIANY’s HR Info Central and be on the lookout for more resource materials to come.