On July 19, 2017 the New York Workers’ Compensation Board (“WCB”) adopted final regulations for the New York Paid Family Leave Law (“PFLL”), which took effect immediately. The final regulations follow a 30-day period of comment and review, and make several changes to the previously proposed revised regulations issued in May 2017 (which revised the original regulations issued on February 22, 2017). Starting January 1, 2018, the PFLL will allow eligible employees to receive paid leave in certain circumstances, including bonding with a new child, caring for a family member with a serious health condition, or relieving family pressure when someone is called to active military service. For more information regarding the PFLL, see our alerts: http://putneylaw.com/cu_031017.html and http://www.putneylaw.com/cu_040516.html.
Wage Deductions and Notification
The final regulations confirm that employers may begin carrying out wage deductions as of July 1, 2017. Importantly, retroactive deductions are generally not permissible. Thus, to the extent employees have already been paid for work performed in July, employers can begin making deductions in the next payroll, but cannot retroactively make “catch-up” deductions for the early July work. Employers do not need to notify employees of the deduction, but may choose to do so to avoid confusion.
The regulations were amended to clarify employee eligibility requirements. Beginning January 1, 2018, an employee who is regularly scheduled to work at least 20 hours per week is eligible to take PFL after 26 consecutive weeks of employment. The WCB noted that those consecutive weeks may be tolled where jobs have built-in breaks (i.e., a professor on semester break), such that those employees will not restart their period of employment for the purposes of eligibility for PFL.
Employers are required to offer a PFL waiver to eligible employees whose regular employment will not meet the minimum eligibility criteria under the PFLL. The employee retains sole discretion as to whether or not to exercise the waiver. The WCB is expected to issue a sample waiver form.
PFLL and the New York City Earned Sick Time Act
The final regulations clarify the relationship between the PFLL and the New York City Earned Sick Time Act. The WCB states that the Workers’ Compensation Law permits employees to use accrued but unused vacation and personal leave to receive full salary during a period of PFL. The final regulations expressly permit employers to offer, and employees to elect, to use accruals of other paid time off, including paid time off under the NYC Earned Sick Time Act, to receive full salary during PFL. The WCB affirms that if the rules governing an employee’s use of sick time allow them to use the accrued time off to care for a seriously sick family member – as is required for employees covered by the New York City Earned Sick Time Act – such time falls within the PFLL’s regulations and an employee may elect to use such paid sick time concurrently with PFL and receive 100% of his or her salary during that period.
Incidental In/Out of State Work
The WCB confirms that employees working in New York State, with only incidental work outside the state, are covered by the PFLL. Conversely, employees working in another state who only incidentally work in New York are not covered. Service is deemed localized in New York if it is performed entirely within the state, or is performed both within and without the state, but the service performed out of state is incidental to the service within the state, or is temporary or transitory in nature, or consists of isolated transactions.
Takeaway for Employers
The final regulations for the PFLL take effect immediately. Employers may, but are not required to, make PFLL deductions from employees at rates established by the WCB. Although PFLL leave is not available until January 1, 2018, employers may immediately begin making employee deductions in order to help fund the cost of purchasing PFLL insurance which must be purchased prior to January 1, 2018.
In anticipation of the January 1, 2018 effective date, employers should review all applicable leave policies, such as FMLA, NYC Earned Sick Leave, disability leave, sick leave, military leave, and maternity/paternity leave policies to help ensure coordination with the PFLL. Employers should also consider adopting a system to appropriately track PFLL leave, particularly when PFLL overlaps with other required leave. Employers should also determine whether and when they will make deductions from employees, and, if so, should coordinate with their payroll department or outside payroll vendor. We have included a list of frequently asked questions under the PFLL for your convenience.
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If you have any questions New York’s Paid Family Leave Law, please do not hesitate to contact us.
212-682-0020 | PutneyLaw.com.