New York State Employers Must Ensure They Have Paid Family Leave Coverage

Starting January 1, 2018, nearly all private employees in New York State will be eligible for Paid Family Leave.

Insurance coverage for Paid Family Leave benefits generally will be added to an employer's existing disability benefits policy. Paid Family Leave coverage is funded by employee payroll contributions. Use the ny.gov/pflcalculator to get an estimate of an employee's weekly deduction.

Through Paid Family Leave, employers may increase recruitment and retention as eligible employees are guaranteed:

• Paid time off for 8 weeks in 2018, increasing to 12 weeks by 2021
• Job protection upon return from Paid Family Leave
• Continuation of health insurance while out on Paid Family Leave

What Employers Need to Do Now

Ensure you have Paid Family Leave Coverage

• Most private employers with one or more employees are required to obtain Paid Family Leave insurance. Contact your broker or insurer to get information about available policies
• Generally, Paid Family Leave insurance will be added to the disability insurance policy you already carry
• If you are self-insured for disability, you may purchase a separate Paid Family Leave policy or apply to self-insure

Post a Workforce Notice

• Your insurance carrier will provide a Notice of Compliance stating you have Paid Family Leave insurance
• If you are self-insured, you can get this notice by contacting the Board at Certificates@wcb.ny.gov to obtain the required notice which is not available on this website
• Post and maintain this notice in a conspicuous place, like what is required for Worker's Compensation and Disability Insurance coverage

Inform Your Employees About Paid Family Leave

• Update appropriate written materials that you give your employees, such as employee handbooks, to include Paid Family Leave information
• If you do not have an employee handbook, provide written guidance to employees on their rights and obligations under Paid Family Leave, including information on how to request leave

Update Your Payroll Processes

• Update internal processes or work with your external payroll manager to collect the employee payroll withholdings or contributions that pay for the insurance. Use the ny.gov/pflcalculator to get an estimate of an employee's weekly deduction.

Inform Non-Eligible Employees About Waivers

• Identify employees who will not qualify for the minimum amount of time required for eligibility (see Employee Eligibility section) and let them know they can choose to waive coverage
• Employees will need to complete a waiver and a template waiver form is available at ny.gov/PaidFamilyLeave
• Keep a copy of completed waivers on file

Familiarize Yourself with Paid Family Leave Forms and Other Resources

• For Paid Family Leave request and waiver forms, please click here
• For updates on Paid Family Leave, please click here to subscribe to updates

REMEMBER: An employer may not discriminate or retaliate against employees for requesting or taking Paid Family Leave.

What Employers Need to Know About Insurance Coverage

Paid Family Leave coverage will typically be added to an employer's existing disability insurance policy.

Employers may deduct the premium cost for the Paid Family Leave insurance policy from employees through a payroll deduction or choose to cover the cost themselves.

The maximum employee contribution in 2018 is 0.126% of an employee's weekly wage capped at 0.126% of the annualized New York State Average Weekly Wage.

Employers should contact their current Disability Benefits insurance carrier to learn more about Paid Family Leave coverage, including when they should begin collecting payroll contributions for Paid Family Leave.

Coverage restrictions for Disability Benefits for employees of non-profit or religious institutions also apply to Paid Family Leave.

Out-Of-State Employers and Employees

An employer with employees working in New York for 30 or more days in a calendar year must obtain Paid Family Leave coverage. Family Leave is a benefit for people who work in New York; it does not matter where the employer is headquartered or where the employee lives. For example:

• An employee who works from home in New York is covered even if the employer is located outside of New York State.
• An employee who is required to travel occasionally into New York State to perform duties, such as a salesperson, will not be considered a New York State employee unless the employment is based in the state.
• An employer that is located outside of New York State does not need to cover employees who live in New York but work outside of New York.

Employee Eligibility

Employees must be employed by a covered employer at the time they apply for Paid Family Leave. Employee eligibility requirements are as follows:

• Employees with a regular work schedule of 20 or more hours per week are eligible after 26 weeks of employment.
• Employees with a regular work schedule of less than 20 hours per week are eligible after 175 days worked.

In limited circumstances, employees whose regular work schedules are temporary or seasonal may opt out of Paid Family Leave.

Employees who hold more than one job may take Paid Family Leave from both jobs, but they must do so with both employers at the same time.

Citizenship and immigration status do not impact a worker's eligibility for Paid Family Leave.

Bonding with a Child

A parent may take Paid Family Leave during the first 12 months following the birth, adoption, or fostering of a child. This includes children born, fostered or adopted in 2017 as long as the leave is taken within the first twelve months of the birth, adoption, or fostering.

Spouses with different employers are both eligible to take Paid Family Leave at the same time. If both spouses work for the same employer, the employer can deny Paid Family Leave to one of the spouses if they have asked for the same period of time-off to bond with the same child.

Family Care

If an employee's family member has a serious health condition, they are eligible to care for them under the Paid Family Leave program. Family members include:

• Spouses
• Domestic Partners
• Children
• Parents
• Parents-in-law
• Grandparents
• Grandchildren

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves:

• Inpatient care in a hospital, hospice, or residential health care facility; or
• Continuing treatment or supervision by a health care provider.

Ordinarily, conditions such as the common cold, the flu, ear aches, upset stomach, minor ulcers, routine dental or orthodontia problems, periodontal disease, etc. do not meet the definition of a serious health condition.

Active Military Duty Deployment

Paid Family Leave is available when a spouse, child, domestic partner or parent of the employee is on active military duty abroad or has been notified of an impending call or order of active military duty abroad.

Employees can take leave to help out with obligations arising out of a call to duty—for example:

• Making alternative child care arrangements for a child of the deployed military member;
• Attending certain military ceremonies and briefings; and
• Making financial or legal arrangements to address the military member's absence.

Paid Family Leave, which provides wage replacement and job security, can be taken by employees who are also eligible for time off under the military provisions in the federal Family Medical Leave Act.

Employee Benefits

In 2018, employees are eligible to receive 50% of their average weekly wage (AWW) and up to 50% of the New York State Average Weekly Wage (SAWW) for up to 8 weeks. In 2019, employees are eligible to receive 55% of their average weekly wage (AWW) and up to 55% of the New York State Average Weekly Wage (SAWW) for up to 10 weeks. In 2020, employees are eligible to receive 60% of their average weekly wage (AWW) and up to 60% of the New York State Average Weekly Wage (SAWW) for up to 10 weeks. When Paid Family Leave is fully phased in in 2021, employees are eligible to receive 67% of their average weekly wage (AWW) and up to 67% of the New York State Average Weekly Wage (SAWW) for up to 12 weeks.

Employers can offer more generous paid leave benefits than required by law. Employers may submit their more generous plan to the NYS Workers' Compensation Board for approval in lieu of obtaining the coverage required by law.

Within 18 days of filing a complete claim for benefits, the Paid Family Leave insurance carrier (or employer if self-insuring) must pay or deny the claim. If denying the claim, the insurer must provide an explanation in writing.

An employee will be paid directly by the Paid Family Leave insurance carrier.

Claim Procedure

When an employee has a foreseeable situation, they should provide their employer 30 days advance notice of their intention to use Paid Family Leave. If the event was not foreseeable, the employee must notify their employer as soon as practical.

An employee should submit a completed claim package to their employer's Paid Family Leave insurance carrier within 30 days of their first day of paid leave. The insurance carrier must process the claim and issue a determination within 18 days.

A claim form will be available from an employer, the employer's Paid Family Leave insurance carrier, or on the Paid Family Leave website.

Employers are also responsible for providing insurers with the dates that employees use Paid Family Leave.

Employee Documentation

When filing a Paid Family Leave claim, an employee must submit supporting documentation to the insurance carrier, as detailed here:

Childbirth

The documentation requirement for a claim for Paid Family Leave to bond with a newly born child depends on whether the applicant is the birth mother or the second parent.

The birth mother must submit a birth certificate, if available, or documentation of pregnancy or birth from a health care provider. The document must include the mother's name and the child's due date or birth date. The second parent must submit, if available, a birth certificate naming them as a parent. If a birth certificate naming the second parent is not available, the second parent may submit a Voluntary Acknowledgment of Paternity or a Court Order of Filiation naming them as a parent.

If those documents are not available, the second parent can submit birth documentation from the birth mother's health care provider and either a marriage certificate or evidence of a civil union or domestic partnership to demonstrate the relationship to the birth mother.

If none of these documents are available, the second parent may submit other documentary evidence of parental relationship to the child, to be evaluated on a case-by-case basis by the carrier.

Foster Care

A claim for Paid Family Leave to bond with a fostered child requires the submission of a letter of placement issued by a county or city department of social services or local voluntary agency. If a second parent is not named in documentation, a copy of the document plus a document verifying the relation to the parent named in the foster care placement will be needed.

Adoption

A claim for Paid Family Leave to bond with an adopted child requires a court document finalizing adoption, or, for Paid Family Leave taken before the adoption is complete, a document showing that the adoption process is underway. Examples of proof of a pending adoption include a signed statement from an attorney, adoption agency or adoption-related social service provider that the employee is in the process of adopting a child.

If the second parent is not named in that document, they must also file documentation verifying the relationship to the parent named in the adoption.

Serious Health Condition

A claim for Paid Family Leave to care for a family member with a serious health condition requires a medical certification, completed by the care recipient's health care provider.

An authorization for personal health disclosure form is required by the HIPAA Privacy Rule and must be completed by the care recipient and retained on file with the health care provider in order to submit the required medical information.

Active Military Duty Deployment

A claim for Paid Family Leave to assist loved ones when a family member is deployed abroad on active military duty generally requires either a PFL-5 "Military Qualifying Event" certification or a US Department of Labor "Certificate of Qualifying Exigency for Military Family Leave." Those forms include (1) military documentation of the family member's deployment or impending deployment (active duty orders or other notice from the military), and (2) documentation of the reason for leave.