by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
July 20, 2017
On July 19, the New York Workers’ Compensation Board issued its final regulations in support of the state’s Paid Family Leave law (NY PFL), which requires employers to provide paid leave benefits to employees starting January 1, 2018. The final regulations follow a public comment period on the proposed rules issued on May 24, 2017. The Board received 58 comments and has also issued an Assessment of Public Comment on Revised Proposed Regulations which provides a summary of the comments receive and the Board’s response. Few substantive changes were made as a result of the comments, but the Assessment provides helpful clarifications on many provisions – even those for which it did not make any changes.
Here is a summary of the more noteworthy (or more interesting) changes and clarifications.
Coverage of employees outside the state of New York.
Several comments requested the Board to change the regulations so that employees who do not live and work in New York are not covered by NY PFL. The Board declined to make this change and clarified that an employee is entitled to NY PFL leave and benefits if some of his or her work is performed in New York and the employee is either: (1) based in New York; (2) controlled from New York; or (3) lives in New York.
In addition, the Board received a request to amend the regulations to allow employers to include non-New York employees in their coverage under NY PFL . The Board pointed out it does not have authority to regulate employees or insurance outside the state of New York and declined to amend the regulations per this request.
Multiple or extended leaves under NY PFL and other programs.
The Board confirmed that an employee may be able to take leave in 2017 under company policies (or the FMLA) and then be entitled to leave and benefits under NY PFL for the same qualifying event in 2018. Examples:
- An employee who receives a new child on August 1, 2017, could take bonding leave under company policies
(which may provide a pay benefit) and/or FMLA in 2017, then take up to 8 weeks of bonding leave under NY PFL any time from January 1 through July 31 in 2018.
- An employee could take up to 12 weeks of FMLA leave in late 2017 to care for a covered family member
with a serious health condition, then take up to 8 weeks of leave starting January 1, 2018, to continue care for the same family member.
Fortunately, this anomaly will only occur for certain leaves in 2017 and 2018, and not for subsequent years.
Notice of payroll deductions to employees.
There is no requirement in either the statute or the regulations for employers to give notice to their employees of NY PFL payroll deductions. However, Matrix recommends that employers should, in fact, provide notice of the employees’ contributions and other aspects of NY PFL so that employees have the facts and appropriate expectations. Matrix has prepared a sample introductory communication to employees for consideration, and will work with clients to craft additional messaging in Q4 2017. Employers should consult with employment counsel to ensure employee communications are appropriate to the law as well as their own corporate policies and practice.
Military exigency leave.
NY PFL provides leave to care for several defined family members with a serious health condition, including the employee’s child, spouse, domestic partner, parent, grandchild, and grandparent. However, the Board has confirmed military exigency leave under NY PFL (which adopts the provisions of the FMLA for this leave) is NOT available for leave necessitated by the military service of a grandparent or grandchild.
Leave and benefits under both New York disability and paid family leave laws.
The Board received inquiry about an employee’s ability to receive both disability (DBL) and PFL benefits for the same birth of a child. The Board pointed out that the regulations clearly state an employee can collect both disability benefits and paid family leave in the post-partum period, but not at the same time. Thus, a new mother could receive disability benefits for some period of time following giving birth, and then take paid family leave within the one year period following the date of birth.
The Board did not address the possibility of using NY PFL for the week following birth during the 7-day waiting period for disability benefits, then switch to disability benefits followed with more paid family leave for bonding. There appears to be nothing in the statute or the regulations that would prohibit this, since NY PFL can be taken in increments of one day or more.
The NY disability and PFL laws limit an employee’s total benefits under both programs to 26 weeks in a 52-week period. The Board clarified that because the employee’s use of benefits is calculated retroactively backward from each day of usage, this will bridge the 52-week period back into year 2017 during 2018.
Employee waiver of NY PFL coverage and deductions.
NY PFL allows an employee who expects that his/her term of employment will be less than 26 weeks for employees working 20 hours per week or more (or 175 work days for employees working fewer than 20 hours per week) can elect to waive coverage and payroll deductions. In response to a request for clarification, the Board has amended the regulations such that employers MUST provide notice to employees of their right to waive coverage. The waiver must be in writing and if the employee’s term of employment exceeds 26 weeks or 175 work days, the employer must start payroll deductions and can collect back premiums from the employee. The regulations do not address how the employer is allowed to collect the back premiums, but other provisions make it unlikely that additional deductions from the employee’s paycheck would be permissible.
Employers will not be permitted to automatically waive PFL coverage for short-term workers. According to the Board, it is the employee’s election to make.
Notice to employee of completed pre-filed claim.
The draft regulations required carriers to provide employees who pre-filed a claim a confirmation of receipt of the completed claim within one business day. Due to objections about the practicality of processing and assessing a claim for completeness within one day, the regulations have been changed to allow a carrier or self-insured employer three business days to send the confirmation. The payment must still be made within 18 days of receipt of the complete claim.
Inconsistency between carrier’s and employer’s determination of NY PFL benefits and leave rights.
The Board received a comment recognizing that “there could be a disconnect between the carrier’s determination and the employer’s determination about whether or not leave should be denied.” I’m quoting here because I’m not sure how else to explain this issue: The Board’s less-than-satisfactory response is, “Because the employer does not decide whether to approve or deny a paid family leave claim, and if the employer suspects fraud it is free to contact the carrier, no change to the regulations has been made.” The Board did not address the question whether the employer would be acting properly if it chooses to use the carrier’s benefits determination as a proxy for the leave determination, thus eliminating the possibility of such inconsistency.
Rights of employees with more than one job.
An employee working simultaneously for more than one New York employer will have NY PFL contributions deducted from their pay from each employer. The Board confirmed that yes, an employee can take NY PFL leave and receive benefits from multiple employers at the same time for the same leave reason. The Board acknowledged that this might result in the employee receiving total benefits in excess of the statutory cap available from employment with a single employer. However, the Board confirmed that the total number of weeks of NY PFL leave and benefits available to an employee in a 52-week period is still subject to the 8-week limit in 2018 (increasing to 12 weeks by 2021).
WHAT IS MATRIX DOING NOW?
Whew! That is about all I can bring to light in the 24-ish hours since the final regulations were published. But we are FAR FROM DONE!
In June Matrix presented webinars, FAQs, and other materials to help employers and brokers understand and prepare for New York Paid Family Leave. Over the coming days and weeks, we will use the final regulations and comments to update all materials, and develop additional ones as warranted. In August we will host another round of webinars.
In the meantime you can always learn more about the law as follows:
- Check out these prior blog posts (but remember some information has changed due to revisions to the
regulations, including those discussed above):
- Watch our June webinar (again, remember some information has been updated since then, but this is a
great introductory primer).
- Ask a question OR sign up for our NY PFL Tip-Of-The-Week by emailing [email protected].
MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at [email protected].