Proposed New York Paid Family Leave Rules Issued

Employers have had nearly a year to consider New York’s Paid Family Leave Benefits Law.  With the recent release of proposed Paid Family Leave (PFL) rules by the Workers’ Compensation Board (WCB), employers finally have something new to consider as they make plans to offer the required PFL benefits starting January 1, 2018.

As many New Yorkers may recall, the PFL Benefits Law was signed by Governor Cuomo, to much fanfare, in April 2016.  The law amended New York’s Workers’ Compensation Law to require employers, beginning in 2018, to provide one of the strongest PFL benefits in the country in terms of job protection, length of leave, and the amount of pay during that leave.  Once fully implemented, New Yorkers could be entitled to up 12 weeks of job-protected PFL paid at up to 67% of the statewide average weekly wage, for absences due to parental leave, care for a family member, or a family member’s military service.

While providing for robust benefits, the law itself was rather light on details regarding the ultimate implementation, interpretation, and administration of its text.  Those details became a little clearer on February 22nd, when the Workers’ Compensation Board (WCB) released its proposed PFL rules.

The WCB’s proposed PFL rules are available here.

If you want to skip right to the text, click here.

At the same time that the WCB released its proposed rules, the Department of Financial Services released proposed rules on PFL insurance coverage standards, available here.

It is important to note that these are proposed rules only and are subject to a 45-day comment period (i.e. through April 7th) before final rules may be issued.

Although these rules are not final (yet), they provide valuable information for employers to consider both how they would implement the proposed rules and whether any proposed rule warrants a comment from an employer, attorney, or industry group.

Some highlights from the proposed rules include: 

  • Close tracking of federal Family and Medical Leave Act (FMLA) definitions -- Among other things, the proposed rules define “Serious Health Condition” in a manner nearly identical to the FMLA’s definition.  This should be helpful to employers and carriers in making determinations as to whether a family member’s medical condition is one that may trigger PFL benefits.
  • Employer policy requirement -- Similar to the FMLA, the proposed rules would require employers to provide written guidance to employees concerning PFL in the employer’s handbook or other written guidance to employees.
  • Early collection of employee contributions -- The proposed rules would permit, but not require, an employer to begin collecting its employees’ weekly contributions for PFL coverage as early as July 1, 2017.  The maximum employee contribution is still scheduled to be set by the Department of Financial Services by June 1, 2017.
  • Parental leave coverage for children born in 2017 -- The proposed rules make clear that employees may seek PFL benefits in 2018 for children born (or placed)  in 2017, so long as the PFL is taken in the first 12 months after the child’s birth.  This could lead to a double-dipping situation where a parent who took company-provided or FMLA-required parental leave in 2017 would be eligible to take PFL for the same purpose in 2018.
  • Clarification of PFL use for birth mothers -- Under the proposed rules, birth mothers recovering from childbirth would be eligible for and could opt to take both disability benefits and PFL, but could not receive both benefits at the same time.  This would open the possibility for a new mother to hold off on utilizing available PFL until after a six or eight week disability period, thus further extending the paid leave available to her after childbirth.
  • Lack of intermittent leave administration information -- The PFL law provides that PFL may be taken intermittently, in full day increments.  Employers hoping for greater limitations or explanations as to how and when intermittent PFL may be utilized will be disappointed with the proposed rules, which contain no such limitations.

At 48 pages of single-spaced text, there is much more in the proposed rules than the brief notes listed above.

We will continue to monitor the status of these proposed rules, and will provide an update when final rules are issued. In the meantime, employers should continue to explore how they will provide and administer PFL beginning in 2018.

Need more information? Please contact any member of the firm’s Labor and Employment group for more information on New York’s Paid Family Leave Benefits Law. 

Luke Wright will be speaking about the Paid Family Leave Benefits Law at the HSE Institute’s Labor and Employment Conference on April 5, 2017, in Rochester, NY. This full-day event is devoted to providing practical solutions that drive business strategies while managing challenging compliance obligations. The event features an informal fireside-chat style session with Richard F. Griffin, Jr., General Counsel, National Labor Relations Board. Click here to register.

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