New York’s Paid Family Leave vs. FMLA: Family Members in the Military

We recently described the military-leave component of New York’s Paid Family Leave (PFL) law which becomes effective January 1, 2018. But how does this differ from the federal law called FMLA?  Turns out there are pretty big differences for New York employers, and the consequences require careful planning.

Simply put, military-related PFL will create new burdens for employers. While everyone invariably agrees that respect and gratitude is due to those who serve our country, New York’s private employers will now shoulder a greater burden because PFL has a far broader reach than FMLA   when it comes to military-related leave.

Under FMLA, a New York employer must provide leave only if:

  • It has 50 or more employees;
  • The employee has been worked at least 12 months and 1, 250 hours during that time; and
  • It’s the employee’s immediate family member who is called to or on active duty.

Immediate family members are a spouse, child, or parent of the employee only.

In contrast, PFL places a greater burden on NY employers and requires coverage for more employees:

  • Any size employer must offer PFL;
  • A leave-seeking full-time employee need only have worked 26 weeks;
  • A leave-seeking part-time employee need only have worked 175 days (approx. 6 months);
  • PFL-qualifying service members are expanded beyond immediate family to grandchildren and grandparents.

As a result, then, a full-time employee whose granddaughter becomes deployed likely is entitled to PFL.  Likewise, an employee whose grandfather is deployed likely qualifies for PFL.  In short, PFL will require more New York employers to provide coverage to more employees than under FMLA.

Even very small employers will face new burdens and should start to plan accordingly. Handbooks and employee policies must be modified to reflect the new law starting January 1st.






New York’s Paid Family Leave: Clarifying Military Considerations

Another part of New York’s Paid Family Leave law pertains to individuals with family members in the military. Employers certainly empathize with staff who have a family member in the military. It’s important to prepare for situations where an employee needs time off because he or she has a family member called up for active military duty.

The PFL law comes into play where there’s a qualifying exigency arising from the service of a family member in the armed forces.  What does this mean? An employees may take leave when a spouse, child, domestic partner, or parent is on active duty or has been notified of an impending call or order of active duty.

In order to meet the law’s requirements, the employee must provide reasonable notice (unless impossible) along with a copy of their loved one’s active duty orders and/or other documentation supporting the leave.

If the employee qualifies, PFL guarantees his or her ability to return to the job as well as to maintain healthcare coverage in the interim.  Companies are well advised to review their employee leave policies before PFL takes effect on January 1st.  Our attorneys can help make this job easier for you.


New York’s Paid Family Leave: Clarifying Child Care Changes

New York’s Paid Family Leave (PFL) benefit that becomes effective January 1, 2018 is on everyone’s mind. Although we’ve blogged about it this spring, the final regulations are out, so we’ll have a few more updates with information to help clarify the final regulations.

This update relates to PFL for an individual seeking to care for a child after birth or placement for adoption or foster care.

The timeframe for taking leave in all these situations is only within the first 12 months of birth or placement. Employers should require appropriate documentation as well.

The birth mother must provide a birth certificate or documentation of pregnancy or birth from a health care provider including the mother’s name and birth or due date.

A second parent must provide a birth certificate, documentation from a health care provider, voluntary acknowledgment of paternity or court order proving parenthood.

An adoptive parent must submit documentation showing an adoption is in process or documentation illustrating the leave is to further the adoption.

A foster parent must submit a letter from the county or city department of social services or local volunteer agency.

If spouses or family members work for the same company, an employer is entitled to deny PFL to more than one employee at the same time to care for the same family leave recipient or to bond with a child. Employee handbooks should be updated to account for these changes in New York law.


Demystifying Contracts: Who Pays For The Darn Lawyers?

When a contract dispute arises and you have to bring a lawsuit against the other party, who’s responsible for the legal fees? Many clients are surprised to find that the general rule in New York  is that you’re responsible for your own attorneys’ fees unless there’s a law that applies to the situation, which isn’t terribly common.

As a result, even where the other party clearly violates the contract, you’ll generally be responsible for the cost of pursuing the wrongdoer and any associated fees. This upsets many clients because, honestly, who wants to pay the costs of a lawsuit to recover something to which you’re already entitled?

And what happens when the proceedings drag on and the fees pile up? Isn’t there anything to do?

One way to protect yourself or your company is to include a contract clause that awards reasonable attorneys’ fees to the prevailing party in a dispute. In New York, this sort of language must make it unmistakably clear that the prevailing party is entitled to receive legal fees and expenses. Attorneys familiar with contract litigation can draft this and put you in the best position to protect yourself in case of a dispute. It’s a precautionary measure that can be a great bargaining chip if a dispute arises and ultimately can help to offset the costs of litigation.


Demystifying Contracts: What’s An Indemnification Clause?

Entering into a contract sometimes creates risk. One way to limit that risk is to have a well-drafted indemnification or hold harmless provision. The words indemnification and hold harmless essentially mean the same thing, so you may see them both ways in contracts.

This language shifts responsibility for damages from one of the contracting parties to another. Say, for example, there’s a construction project, and the general contractor requires its subcontractor to provide indemnification for any loss arising out of the work. This incredibly wide hold harmless net may very well result in the subcontractor’s having to step up to the plate if a worker employed by almost anyone on the project is injured and then sues the GC. The GC uses this language to shift responsibility to its subcontractor.

As you can see, it’s better to get hold harmless language to favor you. If your bargaining power isn’t strong enough, though, one way to limit exposure is by agreeing to cover only damages that you cause instead of being more broadly responsible for any damages relating to the contract or arising out of the work.

An effective way to limit risk is to have your attorney include a hold harmless provision in your favor that creates protection for circumstances that may crop up down the road.


New York’s Paid Family Leave: The Rates Are In

On June 1, 2017, the Insurance Department issued its final regulations on the Paid Family Leave law which is scheduled to become effective January 1, 2018. Regulations by an agency are a common way for a statute to be implemented. Stated differently, regulations provide the details we need in order to know how to comply with laws.

One important aspect we’ve been waiting for is how much will this benefit cost?  This is an expense that’s appropriate to pass along to employees via payroll deduction.

We now know the answer.  The rate is based on a percentage of an employee’s compensation and is set at 0.126% of the weekly wage.  Total cost is capped by reference to New York State’s current average weekly wage which is $1,305.92. So it becomes a simple math problem: at most the cost per employee will be $1,305.92 x 0.126%.

Practical Pointer:  This translates into a maximum employee contribution of $1.65 per week.

In the coming months, we’ll be revisiting the regulations to provide useful information for New York employers who are updating their policies and procedures in order to prepare for the January 1st implementation date.  As always, we welcome your comments and questions.


New York’s Paid Family Leave: Yes, There Are Exceptions to the Rule

As employers prepare for New York’s Paid Family Leave (PFL) law which becomes effective January 1, 2018, you’ll notice that employer obligations under PFL are broader than under federal FMLA.  And while many 50+ employee businesses are familiar with FMLA, PFL will apply to many more New York businesses than the federal law. As a result, it expands the universe of eligible employees.

While PFL has broad applicability, the law contains exceptions, and employers are well-advised to review, understand and ultimately incorporate these exceptions into their policies.

For example, employers won’t be required to provide PFL for:

  1. Two employees who request leave to care for the same person during the same time period;
  2. Employees on administrative leave;
  3. Employees already collecting PTO at the time of the requested leave;
  4. Employees already collecting disability benefits for the time period that PFL leave is requested.
  5. Employees who are seasonal or otherwise haven’t worked the required 26 weeks (or 175 days) immediately before their PFL request.

The proposed regulations add two additional exceptions:

  1. Pregnant employees. PFL will not apply to women until after their child is born;
  2. Employees who opt out and waive making contributions to the cost of FML.

The New York Department of Labor hasn’t yet provided concrete information on when the PFL regulations will become final or whether implementation will be delayed so these last two exceptions are subject to change.

Finally, while it probably goes without saying, PFL doesn’t apply to independent contractors. An independent contractor isn’t a W-2 employee.

Feel free to contact us for assistance in drafting policies that suit your business and comply with the new law.


New York’s Paid Family Leave: Employee Use of PTO

We’ve been writing about the many changes New York employers should be preparing for in order to comply with New York’s Paid Family Leave (PFL) law. Another change that employers should be aware of is whether your employees must use their accrued PTO before taking advantage of PFL benefits.

PFL allows the employee to choose between using her accrued PTO or to take PFL. For employers, this means you can’t require an employee to use her accrued PTO before taking PFL. For employees, this means when you return from paid leave under PFL, your unused PTO must still be available for you to use for another purpose.

If an employee chooses to use her PTO instead of PFL leave, the employer can request reimbursement out of the PFL benefits owed to the employee. This is done by filing a claim for reimbursement from the PFL insurance carrier, and it must be done before the benefits are paid.

In addition, even where an employee chooses to use her PTO instead of PFL leave, she still is entitled to the other benefits of the statute, including reinstatement to the same or a similar position when she returns.

This change may come as a surprise for employers familiar with the federal Family and Medical Leave Act (FMLA). FMLA allows employers to require employees to first use up accrued PTO or personal leave for the unpaid leave.  New York’s PFL does not require this.

Employers should be aware that once PFL takes effect, their employees may take PFL while keeping the PTO that they’ve accrued. This likely will need to be reflected in your company’s policies.

We’ll continue to provide updates as details develop.


New York’s Paid Family Leave: Benefits During Leave

Our last few posts have discussed how a New York employer can determine if an employee is entitled to leave under New York’s Paid Family Leave (PFL) law. Once you determine an employee is eligible for PFL, you may be wondering what to do about the benefits that she’s receiving.

Are you required to keep an employee on your company’s benefit package during leave? Who pays for this?

PFL requires you to maintain an employee’s health insurance as if she were still working. This means if you were making contributions towards that employee’s health insurance before she took leave, you must make the same contributions while she’s on leave. Just the same, if the employee were making contributions towards her health insurance before her leave, she must continue making contributions towards the cost of her health insurance while on leave.

It’s key that you treat an employee on leave as though she were still working. For example, you must continue to provide the employee on leave with notice of any opportunities to change plans or benefits. This also means that if the cost of health insurance premiums changes while the employee is on leave, both your contributions and the employee’s contributions should increase or decrease as they would if the employee were still showing up to work each day.

What happens if the employee stops paying her share of the contributions?

If an employee is more than 30 days late on payments for her health insurance premiums, you generally no longer are obligated to contribute towards the plan. To drop health insurance coverage for that employee, you must provide her with written notice that her payment has not been received. This notice must specify the date her coverage will end if payment is not received and must be mailed to the employee 15 days before that date.

If an employee’s health insurance lapses during her unpaid leave for any reason, you must restore the employee to the same or equivalent benefits when she returns to work. This is true even if the employee chooses to not retain the health insurance coverage during her leave.

These practices are consistent with the obligations you may have if your company complies with federal FMLA. If you’re unfamiliar with these obligations, we’re happy to assist you.


New York’s Paid Family Leave: Changes for Employers

New York employers should begin preparing to comply with New York’s Paid Family Leave (PFL) law which will become effective January 1, 2018.  Your employees will have new rights, and you’ll have new responsibilities.

An employee eligible for PFL is entitled to a continuation of certain benefits during her leave, such as health insurance, in the same manner as if she were working. For instance, if the employee contributes towards her health insurance premiums, she will be required to do so during her leave.  And if your company pays the premiums, it must continue to do so during her leave.

When she returns to work, you must reinstate her to her original or a comparable position.

In addition to these logistics, soon you’ll be required to purchase a PFL insurance policy or self-insure for this coverage so be sure to check with your insurance professionals in advance. The policy’s premium can be paid for by your employees through a payroll deduction you’ll have to set up.

Of course you’ll want to ensure PFL is used appropriately as there are some exceptions. Consequently, it’s important to assess how the new PFL law interacts with FMLA (a federal law) as well as with New York disability coverage.

We can work with you to update your policies to reflect the many nuances of this new law.