October 21, 2019
Beginning January 1, 2020, under New York’s new paid family leave law, eligible employees may receive up to 10 weeks of paid family leave at 60% of their average weekly salary (capped at 60% of the state average weekly wage, or $840.70). This is up from 55% (capped at $746.41) during 2019.
Also, beginning January 1, employers may now deduct 0.270% of an employee’s weekly wages, up to an annual maximum of $196.72 to fund the paid family leave program. This is an increase above 2019’s maximum deduction of 0.153% of an employee’s weekly wages (annual maximum of $107.97).
Benefits. New York’s paid family leave law requires private sector employers to provide paid family leave benefits to eligible employees, starting January 1, 2018. Under the law, paid family leave benefits are phased in over a four-year period. When the law is fully implemented in 2021, an employee may be eligible for up to 12 weeks of paid family leave at 67% of his or her average weekly wage (capped at 67% of the New York state average weekly wage).
Funding. The paid family leave benefits are funded through employee paycheck deductions. Employers are not responsible for contributing to or funding paid family leave benefits but may choose to do so. Paid family leave coverage is typically added as a rider on an employer’s existing disability insurance policy.
Covered Employers. New York’s paid family leave law applies to private sector employers that have one or more employees employed in New York on each of at least 30 days in any calendar year.
Eligible Employees. An employee who works 20 hours or more per week is eligible for paid family leave benefits if the employee works for a covered employer for 26 or more consecutive weeks. Final regulations implementing the law confirm that a part-time employee (one who works fewer than 20 hours per week) is eligible for paid family leave after he or she has worked for a covered employer for 175 days.
New York’s paid family leave law initially became effective back in 2018 to be phased-in over four years. When fully implemented in 2021, eligible employees may receive up to 12 weeks of paid family leave at 67% of their average weekly wages. An employee’s paid family leave benefits are also capped at the New York state average weekly wage.
|Effective Date||Length of Benefit Within 52-week Period||Maximum Weekly Benefit|
|January 1, 2018||8 weeks||50% of the employee's average weekly wage (up to 50% of the state's 2018 average weekly wage of $1,305.92 = $652.96|
|January 1, 2019||10 weeks||55% of the employee's average weekly wage (up to 55% of the state's 2019 average weekly wage of $1,357.11 = $746.41|
|January 1, 2020||10 weeks||60% of the employee's average weekly wage (up to 60% of the state's 2020 average weekly wage of $1,401.17 = $840.70|
|January 1, 2021||12 weeks||67% of the employee's average weekly wage (up to 67% of the state's 2021 average weekly wage)|
Note that the New York Department of Financial Services has discretion in delaying the increases to family leave benefits if there are concerns about the stability of the program or potential negative effects on the economy.
When an employee is eligible for paid family leave, there is no waiting period before he or she is eligible to receive paid family leave benefits.
Also, according to a notice issued by the New York Department of Taxation and Finance, paid family leave benefits are taxable non-wage income that employees must include in their gross income. Taxes will not automatically be withheld from paid family leave benefits, although employees can request voluntary tax withholding.
The paid family leave benefit is funded entirely through employee payroll deductions. No employer is required to contribute to or fund the paid family leave benefit. The New York Department of Financial Services is required to update the employee contribution rate annually by September 1 of each year for the policy year period beginning on the following January 1. Beginning January 1, 2020, employers may deduct 0.270% of an employee’s weekly wages, up to an annual maximum of $196.72.
According to the Department of Taxation and Finance, contributions should be deducted from employees’ wages on an after-tax basis. Employers should report employee contributions on IRS Form W-2, using Box 14.
Employers may self-insure paid family leave, but only if the employer currently self-insured short-term disability benefits. Eligible employers that wanted to self-insure paid family leave must have elected to do so by September 30, 2017.
If an employee will not be eligible for paid family leave because he or she will not work 26 consecutive weeks (for employees who work 20 or more hours per week) or 175 days in a 52-week period (for employees who work fewer than 20 hours per week), the employer must inform the employee of his or her ability to file a waiver of family leave benefits.
If an employee chooses to file a waiver, the employee is exempt from making paid family leave contributions during his or her employment. If employment circumstances change so that the employee would be eligible for paid family leave, the waiver will be automatically revoked. If an employee chooses not to file a waiver, he or she will be obligated to make paid family leave contributions during employment. A model waiver form has been published by the New York Workers’ Compensation Board.
An employee may receive paid family leave benefits for any period of “family leave,” defined as:
For purposes of family leave, “family member” is defined as a child, parent, grandparent, grandchild, spouse or domestic partner. The definition of a “serious health condition” is similar to the definition under the FMLA.
If there are two employees of the same employer that are eligible for leave for the same family member, an employer may implement rules to limit employees from receiving paid family leave benefits at the same time. For example, an employer may restrict spouses (who both work for the employer) from taking family leave at the same time to care for their child.
Paid family leave benefits may be received on an intermittent basis (less than a full workweek), in increments of one full day (that is, one-fifth of the weekly benefit). The final regulations implement specific employee notice requirements for use of intermittent leave, as described as described in the next section.
Employee Notice and Certification Requirements
When the need for family leave is foreseeable (for example, for the birth or placement of a child or for planned medical treatment), an employee may be required to provide his or her employer with 30 days’ advance notice of the intention to take family leave. If the need for leave is not foreseeable, the employee must provide notice as soon as practicable.
An employee who uses paid family leave on an intermittent basis is required to provide the employer with notice as soon as practicable before each day of intermittent leave.
In addition, an employee must notify the employer of the specific qualifying event (type of family leave use) and the anticipated timing and duration of the leave. An employee may be required to provide medical certification completed by a health care provider to support the need for family leave. In all instances where certification is required, it is the employee's responsibility to provide a complete and sufficient certification. A failure to do so may result in the denial of family leave. The New York Workers’ Compensation Board provided model leave request and certification forms that employees may use.
An employee is not able to receive both state disability benefits (DBL) and paid family leave benefits at the same time. If an employee is eligible for both types of benefits, the employee may be able to receive benefits under each program during consecutive periods of time (not at the same time). No employee is entitled to more than 26 weeks of combined DBL and family leave benefits during a 52-consecutive calendar week period. However, an employee may be able to supplement partial disability benefits (under workers’ compensation, volunteer firefighters’ benefit law or volunteer ambulance workers’ benefits) with paid family leave benefits, up to the family leave benefit maximum, when combined with the partial disability benefit.
In addition, any paid family leave benefit must run concurrently with an employee’s available entitlement under the federal FMLA, unless an employer chooses to permit otherwise. Employer policies should outline how paid family leave interacts with the FMLA, and employers must provide employees with proper notification when an employee’s paid family leave is designated as FMLA leave.
An employee may choose to use accrued and available vacation, or other paid time off, to receive a full salary while on family leave (in lieu of the paid family leave benefit). If an employee chooses to use available paid leave, employers may seek reimbursement from the carrier.
When paid family leave runs concurrently with an employee’s FMLA leave entitlement, the final regulations provide that an employer may charge an employee’s accrued paid leave in accordance with the provisions of the FMLA.
An employee who takes paid family leave for a permitted reason must be reinstated to his or her original position upon return to work, or to a comparable position with equal pay, benefits and other terms and conditions of employment.
An employer must maintain an employee’s group health plan benefits for the duration of paid family leave as if the employee had continued to work. This includes the employee continuing to make his or her share of the premium contribution.
Additionally, an employee may not lose any benefits accrued during employment prior to taking family leave. An employer may not retaliate against an employee who takes paid family leave.
Employers must conspicuously post a notice in the workplace to indicate their compliance with the paid family leave requirements. In addition, employers must provide employees who take eight or more consecutive days of family leave with a written notice of their rights under the paid family leave law.
Employers that maintain an employee handbook must include a paid family leave policy that outlines employees’ rights and obligations, including how to file a claim for paid family leave. An employer that does not maintain a handbook must provide each employee a written notice regarding all of the employee's rights and obligations under the paid family leave law, including information on how to file a claim for paid family leave.
An employer that fails to comply with the requirements of the paid family leave law is guilty of a misdemeanor and may face penalties, including fines and imprisonment.
The state of New York has also established a website — Paid Family Leave: Information for Employers — that provides information for employers on the paid family leave law. The New York Workers’ Compensation Board website is at www.wcb.ny.gov.
For additional information, please contact your Burnham Benefits Consultant or Burnham Benefits at 949-833-2983 or firstname.lastname@example.org.
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