Last year, New York State’s (“NYS”) Paid Family Leave (“PFL”) laws took effect, offering employees to apply for insurance benefits to cover time off to:
- bond with a child (e.g., newborn, newly-adopted)
- care for a loved one with a serious illness
- assist family members affected by military deployment
There are very specific criteria employees need to meet for this coverage, but employers can mostly defer to the employees and the disability insurance carriers regarding eligibility. Below are some basic elements you need to know to avoid discrimination claims and penalties for non-compliance. This is not an exhaustive summary.
Why Was PFL Created?
PFL laws were enacted because NYS believed too many employees were losing their jobs when they simply needed time off to bond with children, care for loved ones, or manage households during a military deployment. Employers were presumably inflexible and terminating employees whose attendance was poor due to these family challenges. Now, similar to the reasons the federal Family Medical Leave Act (“FMLA”) was passed, employees have additional protections from discrimination due to certain family challenges and from employment termination when attendance is related to these challenges.
Who Is Paying for PFL Insurance?
PFL insurance is additional disability (“DB”) benefits coverage paid for by employees, unless they are eligible for waivers and actually waive the coverage. Employers are not required to pay for the coverage.
What Do Employers Need to Do to Comply with PFL Laws?
Since the law took effect last year, your DB insurance carrier should have already notified you of the changes. If you are not sure whether your employees are properly covered and the appropriate deductions are being taken, contact your DB carrier to discuss which of your employees are eligible. Once you have determined who is eligible, you can also identify who is not and who may waive the coverage. Ensure you have signed waivers on file for each employee who may waive coverage and opts to do so.
Review with your employment attorney the PFL and FMLA policies in your employee handbook. If you do not have an employee handbook, at least distribute the model PFL policy provided by the NYS Workers Compensation Board, which referees many disputes regarding the PFL, including non-compliance and discrimination. (Coverage disputes between employees and DB carriers will be resolved through arbitration.)
Train your employees, their supervisors, and your benefits administrators (e.g., office manager, human resources manager, bookkeeper, yourself) on the PFL basics, so you know when to recognize the need to grant leave. You are supposed to get 30 days notice. During this time, the employee will provide the requisite application information, and the DB carrier will assess the employee’s eligibility. This will not be the employer’s responsibility. You are primarily responsible for granting the time off without retaliation or discrimination, especially when the DB carrier has approved it. Among other things, you’ll need to return the employee to the same or a comparable job upon his or her return and continue health insurance on the same terms throughout the leave. You’re already doing much of this under FMLA, which can run concurrently with PFL, but which in unpaid. That is the primary difference between FMLA and PFL. FMLA provides unpaid leave for employees when their employers have 50 or more employees; PFL provides paid leave under a DB insurance policy that employees in NYS self-fund.
Not surprisingly, there is a lot more to the PFL than this. You will likely need to consult your employment attorney and DB carrier when you get your first claims. There’s no shame in that. It is more complex than ever to run a business, so ask for help when it will make things easier on you.
NOTE: This post is a general overview of Paid Family Leave (“PFL”) in New York State (“NYS”). It is not legal advice, and there is certainly no guarantee that any of the actions detailed above will generate a specific result. Past success is never a guarantee of a future outcome. If you require information or advice applied to your unique situation, please make an appointment to discuss it with an attorney. Don’t rely solely on what you read on the Internet.
Nance L. Schick, Esq. is a New York City attorney and mediator who focuses on keeping people out of court and building their conflict resolution skills, especially in business and employment disputes. Her holistic, integrative approach to conflict resolution draws from her experience as a crime victim, human resources supervisor, minor league sports agent, and United Nations representative. She is a 2001 graduate of the State University of New York Buffalo Law School trained in Alternative Dispute Resolution (ADR) by the Equal Employment Opportunity Commission (EEOC), Financial Industry Regulatory Authority (FINRA), and International Center for Ethno-Religious Mediation (ICERM). She is also creator of the Third Ear Conflict Resolution process, author of DIY Conflict Resolution: Seven Choices and Five Actions of a Master, and an award-winning entrepreneur, who has been acknowledged by Super Lawyers (ADR, 2018), the New York Economic Development Corporation/B-Labs (Finalist, Best for NYC 2015 & 2016), U.S. Chamber of Commerce (2015 Blue Ribbon Small Business), Enterprising Women Magazine (Honorable Mention, 2014 Woman of the Year awards), and Urban Rebound NY/Count Me In (Finalist, 2013 Pitch Competition).