by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
October 18, 2017
They’re out! The long-awaited, much anticipated application and certification forms for New York Paid Family Leave (NY PFL) have been posted on the NY PFL website HERE! I have reviewed the forms quickly but there is much to absorb and ponder. Such as, how many claims management systems will be able to handle an employee’s choice to answer the gender question with the third option, “Not designated/Other”?
As a reminder, NY PFL goes into effect on January 1, 2018, to provide leave to eligible New York employees for three reasons: to bond with a new child, to care for a family member with a serious health condition, and to attend to matters necessitated by a family member’s active military duty. Leave starts at 8 weeks in 2018 and tops off at 12 weeks in 2021 and subsequent years. Similarly, the pay benefit starts at 50% and caps at 67% in 2021. The benefit is funded by employee payroll contributions.
Watch this blog for further analysis down the road. In the meantime, we want to share some basics. Here are the new forms that have been released, and a few notes:
Applying for Paid Family Leave. New York has provided this “cover page” to accompany each certification form. It gives very basic instructions on the steps the employee must take to apply for NY PFL for each of the three leave reasons.
Request for Paid Family Leave (Form PFL-1). This form is not posted as a stand-alone document. Rather, it accompanies each of the certification forms on the New York website, so no matter the reason for the employee’s leave, the request form is at the same link. The form is 4 pages and also has 2 pages of instructions (PFL-1 Instructions), which should prove helpful in answering many employee questions about NY PFL and the process.
Bonding Certification (Form PFL-2). This short form (again, with instructions) provides very helpful direction on the documentation required to support a request for bonding leave, categorized for the birth mother, other parent, foster parent, and adoptive parent.
Release of Personal Health Information Under The Paid Family Leave Law (Form PFL-3 – Release of PHI). Designed to accompany an employee’s request for leave to care for a family member, this form may be helpful in obtaining the medical information necessary for managing this type of leave. As an observation, however, Matrix has not had trouble getting FMLA certifications for care of a family member without such a release.
Health Care Provider Certification For Care Of Family Member With Serious health condition (Form PFL-4). Unlike California and a few other states, New York allows the employer/carrier to obtain the diagnosis of the family member’s health condition. The form requires the provider to identify his/her credentials and specialty. The form is 2 pages and the instructions are 1 page.
Military Qualifying Event (Form PFL-5). Not much to say about this simple form. It requires the employee to identify for which of the 8 reasons the employee needs leave, and directs the employee to attach supporting documentation. A companion form (PFL-5-T) is a template for supporting the leave request when other documentation is not available for leave to meet with a 3rd party.
Early Observations – Some Concerns. As noted above, we have not completed our analysis of these newly released forms, but we have already spotted some potential challenge areas. For example:
- Neither the Request for Paid Family Leave (PFL-1) nor the certification form for caring for a family member (PFL-4)
provides a definition of “serious health condition” In fact, the provider is never required to certify that the employee’s
family member has a serious health condition.
- Also, neither the employee nor the provider is required to identify what kind of “care” the employee will be providing
to the family member. We at Matrix know from experience that many employee requests under the similar FMLA
provision do not meet the requirement for taking this kind of job-protected leave – and now it will be
paid. A challenge to verify proper usage, to say the least.
- The forms refer to the employer’s insurance carrier, but some employers will be self-funded. This could create
a problem in getting forms properly completed and the correct information provided to the correct party.
For example, as written, the form for release of a family member’s health information (PFL-3) authorizes release
to the insurance carrier, but not to the self-funded employer. While this can be corrected by including the employer’s
name instead of the carrier’s name, we question how many times this will be done correctly on the
first go-round. Can you say “delay”?
MATRIX CAN HELP!
Matrix is honing processes, training teams, and taking other steps to be ready to administer New York Paid Family Leave starting January 1, 2018. This is a natural extension of our leave, disability, and accommodation management services for 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].