The Basics. Essential Elements. Covered Employers. Public Employers. So What is a Qualifying Event?

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1 Lumsden & McCormick LLP Annual Exempt Conference NEW YORK S PAID FAMILY LEAVE LAW: An Overview For Public Employers The Basics Signed into law on April 4, 2016 Known as the The Paid Family Leave Benefits Law Will be phased in over a four-year period, starting on January 1, 2018 Currently the most comprehensive paid family leave program in the nation James R. Rooney, Esq. jrooney@bsk.com Essential Elements Once it is in full effect, all employees in New York State will be entitled to 12 weeks of paid family leave time for qualifying events Employee must work with employer for 26 consecutive weeks in order to qualify o However, there is no minimum hours requirement like there is under the FMLA Covered Employers No minimum number of employees like there is under the FMLA Applies to any employer covered by the New York State Workers Compensation Law o So, basically, this will apply to all employers in New York State Public Employers Opt in by employee organizations Opt in by public employers for employees not represented by a union So What is a Qualifying Event? Providing care for a family member with a serious health condition Bonding with a new child Qualifying exigency as defined by the FMLA Exempt Organizations Conference 1

2 Caring for a Family Member with a Serious Health Condition Statute provides that providing care, including physical or psychological care, for a family member of the employee made necessary by a serious health condition of the family member is a qualifying event for paid family leave purposes Who is a Family Member? [A] child, parent, grandparent, grandchild, spouse, or domestic partner o This definition is much more broad than the FMLA s definition, which only includes a spouse, parent, or child Parent means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child Family Members Definition of child includes a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or the person to whom the employee stands in loco parentis o In loco parentis means any person who assumes the obligations incident to parenthood for a child and actually discharges those obligations or a person who assumed and discharged those obligations before a child reached adulthood What is a Serious Health Condition? An illness, injury, impairment, or physical or mental condition to a family member that either: o Requires inpatient care in a hospital, hospice, or residential healthcare facility; or o Requires continuing treatment or continuing supervision by a health care provider Paid family leave is not available for an employee s own serious health condition, although other laws may apply Family Bonding Leave Leave must be provided to allow an employee [t]o bond with the employee s child during the first twelve months after the child s birth, or the first twelve months after the placement of the child for adoption or foster care with the employee Leave for a Qualifying Exigency Employees will qualify for leave if there is any qualifying exigency as interpreted under the [FMLA]... arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces of the United States Exempt Organizations Conference 2

3 Summary of Paid Family Leave Benefits Employee Notice Requirements Employee is always required to submit written notice of need for leave to employer If the need for leave is foreseeable, an employee must provide notice of the need/intent to take leave at least 30 days in advance If the need for leave is not foreseeable, the employee must provide such notice as is practicable Proof of Entitlement to Leave For leave relating to a family member s serious health condition, the employee must provide written notice and proof... of need for family leave The proof shall include a statement of disability by the... family leave care recipient s health care provider... containing facts and opinions as to such disability in compliance with regulations of the chair Can a Physical Examination be Requested? Yes. If the claim for family leave benefits is contested, the Chair of the Workers Compensation Board can request a physical examination of the family member that the employee is requesting leave to care for The family member s refusal to submit to such an examination without good cause will result in the employee s disqualification for benefits Employer Notice Requirements Employers will be required to conspicuously post a notice indicating their compliance with the new law Employers must provide any employee who takes more than seven (7) consecutive days of family leave with a written notice of their rights under the new law The notice must be provided within five (5) business days after the employee s seventh consecutive day of family leave Relationship to Other Types of Leave Employers may, but are not required to, allow employees to use accrued PTO during periods of paid family leave in order to allow those employees to receive their full salary while out for a qualifying reason If the employer chooses to allow use of accrued PTO and the employee chooses to use it, the employer may request reimbursement of any paid family leave benefits paid to the employee during his or her leave An employer may require an individual who is entitled to both paid family leave and FMLA leave to take them concurrently Exempt Organizations Conference 3

4 Relationship to Other Types of Leave (Continued) An employee is not entitled to more than 26 weeks of combined disability and family leave within any one 52-week period An employee may not receive full disability benefits and paid family leave at the same time However, an employee may receive both partial disability and paid family leave at the same time, but may not exceed the maximum percentage of their wages allowed under the paid family leave statute Intermittent Leave An employee is entitled to take paid family leave on an intermittent basis Increments of one full day or one-fifth of the weekly benefit Leave can be taken intermittently not just to care for a family member with a serious health condition, but also for bonding with a new child Under FMLA, intermittent leave can be taken for birth of a new child (or adoption) only if the employer agrees Continuation of Benefits In accordance with the FMLA, employees taking family leave may not lose any employment benefits because they take family leave Employers must maintain an employee s existing health insurance benefits for the duration of the employee s family leave, as if they had not taken such leave Continuation of Benefits Employees taking paid family leave are not entitled to accrue seniority or other benefits during their leave as if they had never taken leave Employers must continue to make contributions to maintain group health plan benefits during leave It is not clear whether employers can recover premiums from employees who choose not to return to work (like they can under the FMLA) Reinstatement Upon returning from leave, the employee must be restored to the same position or a comparable position with comparable employment benefits, pay and other terms and conditions of employment How is this Funded? Here s some good news! This is funded entirely by payroll deductions taken from employees wages. o Amounts determined by the superintendent of financial services on June 1, 2017, and then annually on September 1 of each subsequent year None of the funding will be provided directly by employers Exempt Organizations Conference 4

5 Retaliation Prohibition on retaliation against any employee for seeking or receiving paid leave benefits Takeaways Prepare a policy that will be ready to go into effect on January 1, 2018 Begin training managers and supervisors on how to implement this new law Keep a lookout for regulations to be promulgated by the Chair of the Workers Compensation Board Questions? PAID FAMILY LEAVE IN NEW YORK Lumsden & McCormick LLP Annual Exempt Conference James R. Rooney, Esq. jrooney@bsk.com Exempt Organizations Conference 5