Beginning on January 1, 2018, New York employers will have to provide paid family leave to their employees. With less than 3 months to go, the law is already in effect in many ways and employers are strongly urged to take steps now to ensure that they are ready to roll come January 1st. This post provides an overview for employers to better understand their obligations under New York’s new Paid Family Leave law (PFL) and its accompanying regulations (which are available here and here) including implementing new policies and administering claims.

  1.      Please remind me, what does this law do again?

Beginning January 1, 2018, PFL will provide, when fully implemented, employees in the state of New York with up to 12 weeks of job-protected paid family leave to:

  • care for a family member (including a child, parent, grandparent, grandchild, spouse or domestic partner) with a serious health condition;
  • bond with the employee’s newborn or newly-placed adoptive or foster child during the first 12 months following birth or placement; or
  • address any qualifying exigency relating to a spouse, domestic partner, child or parent who is serving on active military duty.

PFL will be funded by employee contributions by way of payroll deductions, and, when fully implemented, an eligible employee will be entitled to income replacement of up to 2/3rds of the state average weekly salary.

PFL applies to employers with employees working in New York for 30 or more days in a calendar year. Employees who work from home in New York are covered even if the employer is located out of New York State.

The following employees are eligible for PFL:

  • employees whose regular employment schedule is 20 or more hours per week and have been employed by the employer for at least 26 consecutive weeks; and
  • employees whose regular employment schedule is less than 20 hours per week and have been employed by the employer for 175 days.

Employees who will not meet either of the above criteria must be allowed to opt out of PFL. The form for doing so is available here.

  1.      What are my obligations to secure PFL insurance overage?
  • You should obtain PFL Insurance as soon as possible or by a date that will ensure effective coverage as of January 1, 2018.
  • Assuming you already have disability leave insurance (DBL) (as required by New York State Law), you should check with your carrier because in most circumstances, the carrier will provide a rider to that policy for PFL coverage. In some cases, you will have to look to a new carrier if your current carrier does not offer this type of insurance.
  • In securing this coverage, you will provide the carrier with payroll information so that the carrier can provide an accurate premium quote.

a.  For example, if the employee makes over $67,907.84 (which is the current SAWW of $1,305.92 x 52 weeks), you must only report to your carrier up to that capped amount for purposes of allowing the carrier to provide an accurate quote for the premium.

b.  The PFL wage deduction rate of 0.126% will be applied to the total adjusted wages you provide to calculate the PFL premium amount. You must then pay these premiums to your carrier to receive PFL coverage.

  • PFL premiums need to be paid together with DBL premiums. DBL contracts are often paid annually in advance, which means you will pay for both benefits upfront and only recoup the PFL portion gradually through payroll deduction over the course of the year. It is up to the insurance carrier how to bill the premiums. In some cases they require quarterly payment in arrears, which helps from a cash flow basis.
  • As an alternative, you may self-insure and pay employees’ wage replacement out of your own pocket.
  • Employers exempt from providing PFL coverage may provide voluntary Paid Family Leave by completing the forms available here.
  1.       Why does the law permit me to take deductions before January 1, 2018?
  • You may begin collecting from employees prior to January 1, 2018 through payroll deductions to offset these new premiums/self-insurance costs, especially where you are paying an upfront premium increase for PFL coverage.
  • You are not required to deduct from employees’ wages, but you are permitted to do so in order to fund the increased cost of maintaining PFL insurance for your employees.
  • The maximum employee contribution in 2018 is 0.126% of an employee’s wages, up to an annual maximum of $85.56.
  • You will keep the money you collect in deductions to offset the cost of increased premiums or out-of-pocket payment of claims if self-insured. As you may do with your STD deductions, you should consider pooling this money in a separate account although there is no specific requirement under the PFL that you do so.
  • You may not collect more than the allowable maximum contribution for PFL through payroll deductions. If you do, you must return the excess amount to the employee. Further, you cannot retroactively collect payroll deductions for PFL.
  • Payroll deductions prior to the January 1, 2018 launch date do not affect an employee’s eligibility for future NYPFL benefits.
  • You will not have to refund payroll deductions collected from employees between now and January 1, 2018 for those employees that leave employment during the same time period.
  1.       What are my obligations to inform employees of their PFL rights?

You must be proactive in making your employees aware of their right to take PFL. This includes updating your handbook by January 1, 2018 and displaying a poster regarding PFL coverage in the workplace(s). Employers who maintain employee handbooks must include information regarding PFL in their handbooks; employers who do not have handbooks must provide written guidance to employees concerning their right to take PFL and the process for doing so.

The poster has not yet been released, but will likely soon be available from the State of New York, insurance carriers, or vendors that provide compliant workplace posters.

  1.      What do employees have to do to claim paid family leave?
  • If an employee has a foreseeable need for leave, s/he must give 30-days’ advance notice so you can plan for the absence. In notifying you, the employee should indicate whether s/he is seeking continuous or intermittent leave. You can require leave to be taken in full-day increments, but may permit smaller increments.
  • If the event giving rise to the need for leave was not foreseeable, the employee must notify you as quickly as possible. If the employee fails to do so without unusual circumstances justifying the failure, you can delay or partially deny the employee’s request.
  • An employee wishing to make a claim for PFL must complete the Request for Paid Family Leave (currently the form PFL-1) or give notice of a claim in another format as may be designated by the carrier (or you, if you are self-insured), including using an electronic portal or by telephone. (The Form PFL-1 has not yet been released online, but carriers will likely provide a copy of the PFL-1 or another compliant form of their own. Once available, we will post an update to this post.)

a.  If the carrier (or the employer) designates another format for filing a request for PFL, it must also continue to accept the Form PFL-1, in addition to any other designated form it has chosen.

b.  Any method of filing a request for PFL designated by the carrier (or you) must solicit the same information as the Form PFL-1, Parts A and B.

  • Once you receive a request for PFL from an employee, you must complete the employer information contained in Part B of the Form PFL-1 (or the carrier’s compliant form), and return it to the employee within three (3) business days.
  • The employee shall then submit the Form PFL-1 (or other compliant form) together with the information you supply, and with any necessary certifications or proof of claim documentation, medical or otherwise, to the carrier or designated third-party administrator (such as birth certificate, military deployment papers, etc.).
  • The carrier or self-insured-employer must accept certification and proof of claim forms (currently forms PFL-2, 3, 4, and 5), but they may also accept certifications in another format that complies with the requirements of sections 380-4.2, 380-4.3, 380-4.4 of Part 380, Title 12 of the New York Codes, Rules and Regulations. Again, you will be able to work with carriers to understand the set of forms that will be utilized to administer claims properly.
  • It is incumbent on the employee to submit a completed request for PFL to the carrier. No benefits shall be required to be paid until the completed request for PFL, together with any necessary certifications or proof of claim documentation, has been submitted to the carrier.
  1.      How does the employee receive payment?
  • Within 18 days of filing a complete claim for benefits, the insurance carrier (or you, if you self-insure) must pay the employee or deny the claim or provide an explanation of the denial.

a.  Payment to the employee is made by the carrier and must be by check, direct deposit, or debit card.

b.  If the carrier gives employees a choice of method of payment, it must contact the employee upon receipt of a PFL claim and may require the employee to choose between direct deposit or debit card as the method of payment, unless the employee certifies the need for payment by check.

c.  If the employee fails to make a choice, the carrier can choose to pay by either debit card or check, but must allow the employee to later change from this default.

d.  If the carrier uses methods of payment other than check, it must provide employees with a written notice that identifies the following:

1.      A plain language description of all of the employee’s options for receiving payment of benefits;

2.     A statement that the carrier or self-insured employer may give the employee the choice between receiving benefits by debit card or direct deposit, but cannot prohibit the employee, upon the employee’s certification that it is necessary, from receiving benefits by check;

3.     A statement that the employee may not be charged any fees for services that are necessary for the employee to access his or her benefits in full; and

4.     If offering employees the option of receiving payment via debit card, a list of locations (current at the time the carrier or self-insured employer provides the list to the employee) where employees can access and withdraw wages at no charge to the employees within reasonable proximity to their place of residence or place of work.

  • The employee is entitled to receive a payment from the carrier (or self-insured employer) equal to the lesser of a certain % (i) of the employee’s average weekly salary; and (ii) the State Average Weekly Wage. Currently, the SAWW used for 2018 is $1,305.92, but it will be updated annually. The % used for calculating the benefit will gradually increase through 2021 as follows:
Year Paid Leave Weeks Max % of Employee Avg. Weekly Wage Cap % of Current SAWW
2018 8 50% 50% ($652.96)
2019 10 55% 55%
2020 10 60% 60%
2021 12 67% 67%
  • An employee’s average weekly wage is generally determined by adding his or her wages for the eight weeks prior to the start of the PFL, and dividing the total by eight. But consider consulting the technical definition in the statute for more information – Section 355.9(a).
  1.      When an employee goes out on PFL, what are my obligations?
    • You must allow the employee to continue their health insurance.
    • You may require that employees continue to pay their regular health insurance premium contributions.
    • You must protect and, upon return, reinstate the employee to her same job or to a comparable position subject to the usual exceptions (i.e. the job no longer exists, etc.). Comparable position means same or equivalent as set forth under FMLA.
  2.      How are PFL benefits taxed?

Benefits paid to employees will be taxable non-wage income that must be included in federal gross income. Importantly, the tax on PFL benefits will not automatically be withheld from benefits, but an employee can request voluntary tax withholding. Premiums are deducted from an employee’s after tax wages. With regards to reporting, employers should report employee contributions on a Form W-2 using Box 14 – state disability insurance taxes withheld.

  1.      How does PFL intersect with other types of leave?
    • If you already offer a paid family leave program that fulfills or exceeds the requirements under this law, employees will receive only those benefits provided under that program. The provisions of the PFL law are a foundation; but you may exceed the minimum benefit required by the law.
    • If your program does not meet or exceed the PFL law in all respects, you must ensure that the employee still receives the remaining benefits under the law. For example, if your paid parental leave policy provides for 6 weeks of paid family leave at 100% pay, such benefit would not suffice to totally replace benefits under PFL. In that scenario, the employee would be entitled to an additional 2 weeks (in 2018) at the state-mandated 2018 50% income replacement rate.
    • Since PFL only covers family and military leave, and not an employee’s own serious health condition, an employee could take FMLA or other leave intended for his or her own serious health condition in addition to the maximum leave provided under PFL. For example, an employee could take 12 weeks of FMLA for back surgery, but then an additional 8 weeks of PFL leave to bond with the child.
    • If the PFL leave request also qualifies under FMLA, you may designate a concurrent period of PFL and, after providing the required notice to the employee, charge the employee’s accrued paid time off. If the leave request does not qualify under FMLA, you may provide the employee with the option to run his or her PFL concurrently with accrued paid time off, but may not require him or her to do so.
    • If the employee so chooses to exercise his/her option to use accrued vacation during PFL to get her full rate of pay while on PFL, you can then submit a request to your insurance carrier for reimbursement for the difference. You would have to file a claim for reimbursement with your carrier prior to the carrier’s payment of family leave benefits to the employee in order to obtain that reimbursement.
    • At this time, the implementing regulations remain silent on the interplay between PFL and the New York City Earned Sick Time Act (“ESTA”), which provides up to 40 hours of sick leave, at full pay, to certain employees in New York City. However, in an “Assessment” released by the Workers’ Compensation Board, it confirmed that the employer could provide the employee with the option to use ESTA sick time where s/he qualifies under both laws, in order to receive full payment for the missed time. The ESTA and PFL time would run concurrently and the employee would receive 100% pay.
    • The employee cannot qualify for STD and PFL at the same time, so if they were using PFL benefits, they would not be entitled to benefits under your STD plan or the state STD plan at the same time. However, the employee may qualify to take both sequentially. If that is the case, the combined total disability leave and PFL in any 52-week period may not exceed 26 weeks. In other words, the employee cannot get the full 26-week disability benefit plus the maximum PFL entitlement.

Mintz Levin’s Employment Labor & Benefits Practice stands ready to help you as you work to meet your obligations under this new law. We also recommend that you contact your carrier (or insurance broker) as soon as possible to secure appropriate coverage.