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New York Paid Family Leave Law Contributions Have Started, While Proposed Regulations Are Revised

The Paid Family Leave Act will provide, when fully implemented, employees in the state of New York with up to 12 weeks of job-protected paid family leave to (1) care for a family member (including a child, parent, grandparent, grandchild, spouse or domestic partner) with a serious health condition; (2) bond with the employee’s newborn or newly-placed adoptive or foster child during the first 12 months following birth or placement; or (3) address any qualifying exigency relating to a spouse, domestic partner, child or parent who is serving on active military duty. The Act will be funded by employee contributions and, when fully implemented, the employee will be entitled to income replacement of up to 2/3rds of the state average weekly salary.

January 1, 2018 was established as the date upon which benefit payments begin but the Act allowed employers to begin taking deductions as of July 1, 2017 to offset the cost of acquiring the mandated insurance policies.

The New York State Workers’ Compensation Board recently revised its proposed regulations (described in our previous blog post here) to the law.  The revisions were in response to over 100 written comments.  Here is a quick summary of those revisions:

    • Definition of Wages - The definition of “wages” was amended to explicitly provide that tips be included in the average weekly wage calculation.
    • Eligibility – The eligibility criteria have been amended to account for employees with compressed work schedules by removing the part-time and full-time designations. Instead, the proposed regulations apply a 26 week eligibility criteria to employees who work 20 or more hours per week, and a 175 day eligibility criteria to those who work less than 20 hours per week.
    • Use of Accruals. The proposed regulations have been amended to provide that if an employer designates a period of leave to be covered by FMLA for a reason which is also covered under the Paid Family Leave Law, and the employee declines to apply for payment under the Paid Family Leave Law, the employer may still count the period against the employee's maximum leave entitlement in a 52 consecutive week period under section 204(2)(a) of the WCL (which provides weekly cash benefits to replace wages lost due to injuries or illnesses that do not arise out of or in the course of employment).
    • Interplay with FMLA. The proposed regulations have been amended to clarify that the use of paid time off accruals during family leave by an employee of an FMLA covered employer will be charged in accordance with FMLA. The proposed regulations permit an employer to offer an option to charge all or part of family leave time to paid time off accruals.
    • Waiver of Paid Family Leave Coverage. The proposed regulations have been amended to explicitly permit employees that will be employed for fewer than 26 consecutive weeks or 175 days in a 52 week period to waive coverage. The Workers’ Compensation Board will develop a waiver form.
    • Collectively Bargained Agreements. The proposed regulations have been amended to explicitly state that a collectively bargained plan may allow employees to establish their eligibility for benefits while working for multiple employers.
    • Denial of Requests. The proposed regulations have been amended to include language to require that insurance carriers specifically state the basis of a denial of a request for paid family leave.
    • Reinstatement. The proposed regulations have been amended to eliminate the 120 day requirement for the formal request for reinstatement, but no change was made to the requirement that the employee file a formal request for reinstatement prior to submitting a complaint.
    • Intermittent Leave. The proposed regulations have been amended to clarify that an employee using intermittent leave must give the employer separate notice for each day of paid family leave.

The full text of the updated proposed regulations can be found here and the Board’s responses to the comments are here.

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Alexander K. Song is a Mintz Associate whose practice focuses on all aspects of executive compensation, including drafting of equity and incentive compensation plans and award agreements. Alex also handles employment, change-in-control, and severance arrangements for executive officers.