New York Paid Family Leave - Legislative Guidance

Table of Contents

Overview
Employer Coverage
Employee Eligibility
Qualifying Absence Reasons and Leave Duration
How Leave Can be Taken
Certification Requirements
Pay and Benefits
Interaction with Other Laws
Employee and Employer Responsibilities
Resources

Overview

New York Paid Family Leave (NYPFL) offers eligible employees job protected, paid leave benefits, when caring for family members, bonding, or qualifying exigency. The amount of entitlement and pay available varies based on the year in which the leave was taken. Limits have been increased since the law went into effect in 2018. In 2024, employees may take up to 12 weeks of leave.

NYPFL is a state administered program that is funded through payroll contributions shared between the employer and employee. Certain employees do not have to contribute to the fund and must sign a waiver, and employers may choose to fully fund the program versus taking contributions from an employee.

While almost all New York employers must participate in the program, the state does offer an option for equivalent plans. Equivalent plans must provide equal or greater benefits than the state program and be approved by the New York Workers' Compensation board.

In New York, the state administers requires a third-party insurance carrier to render decisions. An employer can choose which insurance carrier they prefer to use to manage the claims, so long as they are registered with the state. Employers will need to apply for a state account to submit payroll contributions, and waivers. Where an employer can view decisions and applications depends on the third-party vendor the employer has decided to use which may be the vendor’s portal or website.

AbsenceSoft Policies

New York Paid Family Leave is configured in AbsenceSoft with the policy code and naming below:

• New York Paid Family Leave NY-PFML

Legislation codes and statues

The information presented in the guidance relates to the following legislative codes, links to the specific legislation can be found within the ‘Resources’ section of this document. :

• New York Workers Compensation Law, Chapter 67, Article 9, Sections 200-242 (N.Y. Workers' Comp. Law §200 - 242)

• New York Codes Rules and Regulations, Title 12, Chapter 5, Article 1, Section 355.9 (N.Y. Comp. Codes R. & Regs. Title 12 §355.9)

• New York Codes Rules and Regulations, Title 12, Chapter 5, Article 2, Section 380 (N.Y. Comp. Codes R. & Regs. Title 12 §380)

Employer Coverage

Employer has one or more employees on each of the 30 days in any calendar year.

Exclusions:

• Public employers –can opt-in

• Unions – can opt-in

• Non-profit organizations

• Religious organizations (churches, rabbis, priests, etc.)

Employee Eligibility

An employee who works or does work within New York. Employee eligibility is based upon the number of hours an employee works, or any time paid by the employer or time off approved by the employer under other leave policies, and how frequently the employee works. Additionally, an employer may choose to cover employees on a voluntary basis, though they may not meet the criteria below.

Those employees who never will meet the eligibility requirements may opt-out by signing a waiver.

The employee is eligible if:

• Full-time and work for 26 consecutive weeks at least 20 hours a week on a regular basis.

• Part-time and work 175 days over the course of employment with employer (if employee is terminated and re-hired the 175 days resets), and work less than 20 hours a week. Those employees who do not work regular shifts should calculate an average to determine if the employee works fewer than 20 hours a week.

Exclusions:

• Golf caddies

• Self-employed – can opt-in

• Minor children

• Independent contractors

• Seasonal employees who do not meet the part-time threshold listed above

Qualifying Absence Reasons and Leave Duration

Employees may take up to 12 weeks of leave time in a 52 week period measured on a rolling back schedule from the date the employee first took leave for any of the qualifying reasons listed below. Intermittent leave entitlement bases the 12-week entitlement on the amount of time the employee typically works:

Family Leave

• Adoption/Foster Care: Address matters of placement(court, social worker visits etc), care for and bond with a child during the first year after placement through adoption or foster care. The employee’s leave will end 12 months following the start of any adoption/foster care activities that happen prior to placement.

• Bonding: Care for and bond with a new child during the first year after birth.

• Family Health Condition: Care for a family member with a serious health condition.

Military

• Qualifying Exigency: Includes family member’s attendance of an active duty service member called for deployment to spend time prior to short-notice deployment, post-deployment activities, military events, making financial or childcare arrangements, visiting the servicemember during period of rest or counseling.

Qualifying Family Member

Those family members who are covered under military reasons are noted with (military)

• Spouse

• Child(under age 18 for bonding of an adopted child, child of any age for care of child, grandchild in loco parentis, stepchild, legal ward)

• Domestic Partner

• Parent

• Grandparent

• Sibling

• Stepparent

• Parent-in-law

For qualifying exigency reasons only the spouse, domestic partner, parent and child of any age relationship applies.

How Leave Can be Taken

Employees may take leave consecutively or intermittently for any qualifying reason.

• Consecutive leave: A continuous, uninterrupted period of leave taken for a single qualifying reason.

• Intermittent leave: Leave taken in separate, sometimes unpredictable, blocks of time (either hours, days or weeks) between the start and end dates of leave. Under New York PFML only full day increments can be used.²

Certification Requirements

Certification forms are given to employees when they file claims through the third-party vendor. Employers do have information they must complete within 3 business days, and return back to the employee and/or the vendor upon completion.

Decisions on the claim should be made within 18 calendar days from completed submission. Employers should contact their chosen third-party vendor to determine where they can view the decisions on a claim.

Employees using intermittent leave must reapply for NYPFL if they use no time/have no absences for 3 months.

Pay and Benefits

NYPFL is a paid benefit that also offers job protection. Where state pay benefits are involved with other law interactions, such as state mandated sick pay, employers will want to consider where PTO/employer pay benefit application should occur. There is no waiting period for NYPFL.

Amount of Pay

NYPFL pays a weekly benefit amount that is determined by comparing the employee’s average weekly wage to the state’s average weekly wage. Benefits are calculated on a sliding scale, with lower-income employees generally receiving more of their usual wages compared to higher-income employees. Minimum and maximum weekly benefit amounts are based on the state average weekly wage.

The state typically updates the percentage amounts year over year. Employers should check with the New York Paid Family Leave website when advising employees what to expect in benefit amount.

Use of Paid Time Off (PTO)/Employer Benefits

NYPFL has interactions with FMLA when it comes to required use of PTO or other accrued leave. Where an employee is eligible and taking leave under FMLA and NYPFL an employer may require an employee to use accrued time off.

If the employee is not eligible for FMLA, the employee can elect to use any company accrual benefits, if they choose to do so. If they do agree to use accruals, an employer can request reimbursement from NYPFL funds when an employee has used accruals to pay their full salary. Employers should work with their carrier for reimbursement and notify the carrier before the NYPFL benefits are paid out.

An employee may also elect to use accrued time off while receiving NYPFL to top-off their benefits. An employee can’t receive PTO and NYPFL where it pays more than 100% of their wages.

Job Protection

NYPFL requires an employer to reinstate an employee to the same position or a comparable position with same terms and benefits the employee had before leave.

Other Protections

Employees are protected from discrimination for exercising their rights under NYPFL.

Benefits

Benefits should be continued while an employee is on NYPFL, as though the employee is not on leave. Employers should notify employees of changes in benefit offerings or coverages.

An employer may require an employee to pay their share of the premium costs. If an employee fails to make payment, an employer may end an employee’s benefits only if the employee is 30 days late in paying them, and an employer has given at least 15 days grace period following the 30-day late payment.

Interaction with Other Laws

Where an employee meets the definition of family member, qualifying absence reason, or serious health condition, the state and federal laws may interact. Accommodations that are not leave related, would not run concurrently with other state or federal leave laws.

Family and Medical Leave Act (FMLA)

FMLA and NYPFL may run concurrently. Use of PTO when required under employer policies for FMLA can be enforced under NYPFL. An employee must be notified of their NYPFL concurrencies via the designation notice requirements under FMLA or the law indicates FMLA is not running at the same time, leaving an employee the opportunity to use FMLA at a different time.

New York Temporary Disability

NYDBL and NYPFL will NOT run concurrently.

Unemployment

NYPFL does not run with an employee collecting unemployment pay benefits.

Worker’s Compensation

NYPFL does not run with an employee collecting worker’s compensation pay benefits.

Employee and Employer Responsibilities

Employee Responsibilities

• Give 30 days’ advance notice of need for leave or as soon as possible for unforeseen circumstances;

• Notify the employer if changes in the leave;

• Start claim with prescribed carrier or employer within 30 days of the first day of leave;

• Complete the certification forms and return to the prescribed carrier or employer;

• Respond to any requests on the claim for further information or appeals process; and

• Follow any employer policies and call out procedures where applicable.

Employer Responsibilities

• Notice requirements must provide rights and obligations under NYPFL:

  • Post the model poster in a place that is conspicuous;

  • Written notice with the rights and obligations of NYPFL; this can be in handbooks, manuals etc or given to each employee when no handbooks or manuals are provided;

  • Employees must be notified of the payroll contribution rates.

• Provide waiver forms to employees;

• Determine PTO reimbursement or if PTO will be required;

• Complete portions of the certification forms and return to employee within 3 business days;

• Respond to NYPFL inquiries;

• Choose a carrier if not self-funding, withhold required contributions, file proper records, and ensure no lapse in coverage;

• An employer’s leave policies can be followed under NYPFL so long as the employer policies are less demanding than the law’s requirements.

Resources

New York Paid Family website: https://paidfamilyleave.ny.gov/

New York Workers Compensation law: https://www.nysenate.gov/legislation/laws/WKC/A9

New York Department of Labor regulations: Thomson Reuters as cited on the New York Paid Family website as a source.

¹ N.Y. Workers' Comp. Law § 206(5)

² N.Y. Comp. Codes R. & Regs. Title 12 §380-2.5

³ N.Y. Workers' Comp. Law § 205.2 (c)