On April 4, 2016, New York Governor Andrew Cuomo signed new legislation (available here) introducing New York State's first paid family leave law (the Paid Leave Law). The Paid Leave Law will require New York employers of all sizes to provide eligible employees with 12 weeks of job-protected family leave for reasons similar to those provided for under the federal Family and Medical Leave Act (the FMLA).
Beyond the protections of the FMLA, however, the Paid Leave Law will also entitle employees to a partial salary continuation benefit during a qualifying leave, which will be paid by the state and funded through employee paycheck deductions (similar to state disability benefits). Notably, this means that while employers will not face any immediate financial burdens under the new law, they will need to ensure that their payroll providers begin taking the proper tax withholdings.
Timing and Implementation of the Paid Leave Law
The Paid Leave Law initially goes into effect on a limited scale as of January 1, 2018 and will be fully implemented by January 1, 2021. Beginning on January 1, 2018, employers will have to provide eight weeks of leave to eligible employees, to be paid by the state at a rate of 50 percent of the employee's weekly pay (capped at 50 percent of the statewide average weekly pay). In 2019, this will increase to 10 weeks of leave, at a rate of 55 percent of the employee's weekly pay (capped at 55 percent of the statewide average weekly pay), followed by 60 percent of the employee's weekly pay in 2020 (capped at 60 percent of the statewide average weekly pay). Finally starting in 2021, employers must provide 12 weeks of leave, to be paid at 67 percent of the employee's weekly pay (capped at 67 percent of the state's average weekly pay). Unlike New York State short-term disability benefits, family leave benefits will be available immediately on the first full day that the employee takes leave.
Protections Provided by the Paid Leave Law
Under the Paid Leave Law, full-time and part-time employees who have been working for an employer for at least 26 consecutive weeks will be entitled to job-protected family leave for any of the following purposes:
- To bond with a new child (including an adopted or foster child) within the first 12 months after birth, adoption or placement;
- To provide physical or psychological care for the serious health condition of a family member, including a child, spouse, domestic partner, parent (step-parent or legal guardian), parent-in-law, grandchild, grandparent or sibling; or
- To address a qualifying exigency (as defined under the FMLA) when the employee's spouse, domestic partner, child or parent is called to active military service.
Note that the new law is more protective of New York employees than the FMLA, which only covers employees who work for companies with at least 50 employees within a 75-mile radius and who have worked for an employer for at least one year and for at least 1,250 hours during the 12 months before the leave. In contrast, any full-time or part-time employee who has worked for an employer of any size for at least 26 consecutive weeks is covered under the New York Paid Leave Law.
While employees cannot take leave under the new law to care for their own serious health condition, FMLA-eligible employees will still be able to take a job-protected leave of absence under the FMLA (also for up to 12 weeks) and, if eligible, collect disability benefits through a company's plan and/or from the state.
Similar to the FMLA, under New York's new law:
- An employee who wants to take a leave of absence under the new law will have to furnish proof of his/her new parental status, certification of the family member's serious medical condition, or proof of the family member's call to active military duty;
- Employers must restore employees to the same or comparable position upon their return from leave;
- Employees may take leave intermittently or on a reduced leave schedule; and
- mployers cannot retaliate against employees who take leave under the Paid Leave Law.
Employers may require that leave under the Paid Leave Law run concurrently with FMLA leave. Employers must also continue employees' health care benefits during a leave under the new law.
New York employers should prepare to revise leave policies so that all eligible employees are provided at least eight weeks of job-protected family leave as of January 1, 2018, 10 weeks as of January 1, 2019, and eventually 12 weeks by 2021. Additionally, employers should coordinate with their payroll companies to ensure that they begin making the proper paycheck deductions to fund the state family leave insurance fund effective January 1, 2018.
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