On April 4, 2016, Governor Andrew Cuomo signed a bill that will require employers to provide paid family leave benefits to eligible employees as part of the state’s disability insurance program. Paid family leave benefits will be phased in over a four-year period, beginning Jan. 1, 2018. When the law is fully implemented in 2021, employees may be eligible for up to 12 weeks of paid family leave. New York’s paid family leave benefits will be funded through deductions from employee’s paychecks. Under the new law, employers are not responsible for contributing to, or funding paid family leave benefits.
An employee is eligible for paid family leave benefits if the employee works for a covered employer for 26 or more consecutive weeks. Covered employers include those that have one or more employees employed in New York on each of at least 30 days in any calendar year. When fully implemented in 2021, eligible employees may receive up to 12 weeks of paid family leave at 67 percent of their average weekly wages. The amount of paid family leave benefits will be phased in as follows:
1/1/18: Up to 8 weeks @50% of the average weekly wage
1/1/19: Up to 10 weeks @ 55% of the average weekly wage
1/1/20: Up to 10 weeks @ 60% of the average weekly wage
1/1/21: Up to 12 weeks @ 67% of the average weekly wage
An employee’s paid family leave benefits are also capped at the state average weekly wage. For example, effective Jan. 1, 2018, eligible employees may receive up to 50 percent of their average weekly wage during family leave, not to exceed 50 percent of the state average weekly wage. When an employee is eligible for paid family leave, there is no waiting period before employees are eligible to receive paid family leave benefits.
Family Leave Use
An employee may receive paid family leave benefits for any period of “family leave,” defined as:
- Leave to participate in providing care, including physical or psychological care, to a family member with a serious health condition;
- Leave to bond with the employee’s child during the first 12 months after the child’s birth or after the placement of the child for adoption or foster care with the employee; or
- Leave taken because of any qualifying exigency as interpreted under the federal Family and Medical Leave Act (FMLA) arising out of the fact that the spouse, domestic partner, child or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the U.S. Armed Forces.
For purposes of family leave, “family member” is defined as a child, parent, grandparent, grandchild, spouse or domestic partner. The definition of a “serious health condition” is similar to the definition under the federal FMLA.
Paid family leave benefits may be received on an intermittent basis (less than a full workweek), in increments of one full day (that is, one-fifth of the weekly benefit).
Employee Notice and Certification
When the need for family leave is foreseeable, an employee may be required to provide his or her employer with 30 days’ advance notice. If the need for leave is not foreseeable, the employee must provide notice as soon as practicable.
An employee may be required to provide medical certification completed by a health care provider to support the need for family leave.
Interaction with Other Laws and Benefits
An employee is not able to receive both full disability benefits and paid family leave benefits at the same time. However, an employee may be able to supplement partial disability benefits with paid family leave benefits, up to the family leave benefit maximum, when combined with the partial disability benefit. No employee is entitled to more than 26 weeks of combined disability and family leave benefits during a 52-consecutive calendar week period.
In addition, any paid family leave benefit must run concurrently with an employee’s available entitlement under the federal FMLA, unless an employer chooses to permit otherwise. No employee is entitled to more than 12 weeks of paid family leave benefits within a 52-week calendar period. Also, an employee may choose, but cannot be required, to use accrued and available vacation or other paid time off to receive a full salary while on family leave (in lieu of the paid family leave benefit).
An employee who takes time off for a permitted paid family leave reason must be reinstated to his or her original position upon return to work, or reinstated to a comparable position with equal pay, benefits and other terms and conditions of employment. In addition, an employer may not retaliate against an employee who takes paid family leave.
An employer must maintain an employee’s group health plan benefits for the duration of paid family leave as if the employee had continued to work. Additionally, an employee may not lose any benefits accrued during employment prior to taking family leave.
For the most up to date information on how this will impact your NYS Statutory Disability, contact The Flanders Group at 800-462-6435.