The New York State Paid Family Leave Act

In 2016, Governor Cuomo signed into law the nation’s strongest and most comprehensive Paid Family Leave policy. Starting January 1, 2018, the New York State Paid Family Leave Act (PFLA) will provide New Yorkers 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 called to active military service.

Mirroring similar laws in New Jersey, California, and Rhode Island, the New York statute provides wage replacement for employees taking family leave. But there is a lot to know about this new law going into effect in less than three months.

The PFLA applies to all private employers in New York State. The state legislature exempted state workers from the law. Secondly, almost all employees will be eligible for the benefits. Employees who regularly work 20 or more hours a week become eligible after 26 weeks of employment, while eligibility for those who work fewer than 20 hours a week begins after 175 days of work.

Employees can utilize the paid leave, which includes job and health insurance protection, for bonding with a newborn, foster or adopted child; to care for a seriously ill family member, or to support a family member called to active military duty. “Bonding leave” can be taken at any time within 12 months of the event. The birth mother must submit a birth certificate. The second parent must provide either a birth certificate naming them as a parent, a court order or a Voluntary Acknowledgement of Paternity. For an adoption, a court order finalizing the adoption will do.

A family member for purposes of PFLA is a spouse, domestic partner, child, parent, parent-in- law, grandparent and grandchild. The law makes clear that a serious health condition is one that requires in- patient care or continuing treatment by a doctor. Employees must submit a medical certification from the family member’s doctor to be considered for the leave. An employee seeking to take leave due to the deployment of a family member must submit the certification required for such leave as under the Family and Medical Leave Act of 1993 (FMLA).

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.

Job protection is defined as returning an employee to the same or a comparable job they held prior to taking leave. Employers may require that employees continue to pay their health insurance premium contributions. An employer may not discriminate or retaliate against employees for taking or inquiring about Paid Family Leave.

Employers can allow but not require employees to use vacation and sick time during the leave in order to receive their full wages for a portion of the time off. Those benefits need not continue to accrue during the leave. Employers can require continued payment of employee contributions to health insurance in the same manner as under FMLA.

Wage replacement under PFLA is funded by employee payroll deductions. The only opt-out of deductions is for employees who will not be working the requisite amount of time to qualify for benefits. Most employers will use their disability insurance carrier to administer the plan, although self- administration is permitted.

Contact your Smolin advisor for help in implementation and maintenance of this complex new law.