by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
October 06, 2017
In something of a stealth move, the New York Workers’ Compensation Board has released three forms for employers’ use in administering and complying with the Paid Family Leave Law that provides benefits starting January 1, 2018. Those of us who check the NY PFL website daily and are signed up for news feeds received no word, but had to learn of the new forms through back channels. The released forms include the following:
Employee Paid Family Leave Opt-Out of Benefits (PFL-Waiver, 9-17)
If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form. Eligibility requires 26 weeks of 20 or more hours per week, or 175 days of work averaging fewer than 20 hours per week, with a covered employer.
This form contains some interesting news. The employee’s waiver can be revoked by the employee or automatically because the employee has or will work more than the time needed for eligibility. Per the regulations, the employee then has the obligation to catch up on contributions that would have been made during the eligibility period but for the waiver, but the regulations do not specify how the employer can recoup these amounts. The form appears to authorize additional deductions from the employee’s pay to catch up for missed contributions:
I also understand if this waiver is revoked (either by me or by a change in my work schedule), my employer may take retroactive deductions for the period of time I was covered by this waiver, and this period of time counts towards my eligibility for paid family leave. [Emphasis added.]
Employer’s Application for Voluntary Coverage (No Employee Contribution) (PFL-135, 9-17)
Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-135 (if no employee contribution is required).
Employer’s Application for Voluntary Coverage (Employee Contribution Required) (PFL-136, 9-17)
Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-136 (if they will be requiring an employee contribution).
The NY PFL regulations also calls for forms for employee use to request NY PFL, and certifications to support leave taken to care for a family member with a serious health condition, for military exigencies, and to bond with a new child due to birth or placement for adoption or foster care. Employers and insurance carriers still working to get ready for the January 1, 2018, effective date have been begging the WCB for these other forms, which will be critical in getting the information the employer is entitled to for consideration of leave requests. Employers and carriers are permitted to use their own forms, but clearly it is safest and easiest to use NY-sanctioned forms, especially at the beginning of this uncharted leave law.
The new forms, and additional forms as they are released, can be found at this link: https://www.ny.gov/new-york-state-paid-family-leave/paid-family-leave-employer-and-employee-forms-0
Hat tip to Marjory Robertson who provided early information about the new forms in an industry NY PFL call group!