Harter Secrest & Emery LLP ATTORNEYS AND COUNSELORS NYS Paid Family Leave Practical Tips for Implementing and Complying With PFL Requirements Presented by Amy Hemenway and Luke Wright
Disclaimer These materials are for educational and general informational purposes. They should not be relied upon as legal advice. You should consult with legal counsel for advice about your company s specific situation.
Today s Agenda Quick Recap Leave Requests Waivers Policies, Notices, Handbooks Interplay and Challenges Other Leave Programs Collective Bargaining Implications
Quick Recap PFL takes effect January 1, 2018 Eligibility employees Eligibility nature of leave 8 weeks of paid leave (increases to 12 weeks by 2021) Up to 50% of weekly salary, capped at 50% of NYS average weekly wage (increases to 67% by 2021) Job protected Must maintain health insurance coverage during leave
Process to Request Leave EE fills out request form and provides to employer Employer completes employer portion of form within 3 business days and returns to EE EE submits form to carrier, along with any required back-up documentation Carrier acknowledges receipt within 1 business day If application is incomplete, carrier notifies EE within 5 business days Once application is complete, begin payments within 18 days
Notice to Use Leave 30-days notice required if leave is foreseeable, otherwise as soon as practicable Employer can request notice as soon as practicable for each day of intermittent PFL EE must provide sufficient information about qualifying event, timing, and duration of leave If EE fails to provide proper notice, benefits may be denied for up to 30 days from date notice was provided
Optional Waiver of PFL Coverage Covered employees may waive PFL coverage - Regularly scheduled at least 20 hours per week but employee will not work 26 consecutive weeks - Regularly scheduled less than 20 hours per week and employee will not work 175 days in a 52 consecutive week period Waiver is optional and revocable at any time Employer must notify eligible employees of waiver option
Optional Waiver of PFL Coverage Form: https://www.ny.gov/new-york-state-paid-family- leave/paid-family-leave-employer-and-employee-forms- 0#employee - Employer information - Employee information - Employment information - Employee affirmation - Certification Employer must retain copy of waiver form for as long as employee is employed Best practice tip document notice of waiver option
Optional Waiver of PFL Coverage What if circumstances change and employee no longer qualifies for wavier? Automatic revocation of waiver within 8 weeks of change in regular work schedule Employer must notify employee Employee must immediately begin making contributions to the cost of PFL benefits (i.e., payroll deduction) Employee must also make retroactive catch up contributions for unpaid amounts since date of hire
Optional Waiver of PFL Coverage What if employee declines waiver option? Employee must make regular contributions Employer is obligated to provide PFL benefits when employee is otherwise eligible
Optional Waiver of PFL Coverage EE is part-time, working 3 days, 5 hours per day. Is EE eligible for waiver? What if EE declines waiver? What if, after 3 months EE decides to waive coverage? What if, after 2 years, EE s schedule changes and she starts working 3 days, 7 hours per day?
Optional Waiver of PFL Coverage EE is full-time temporary worker on a project estimated to last 3 months. Is EE eligible for waiver? Do things change if EE is hired as a regular EE? What if, after 1 year, EE s schedule changes to parttime, 3 days, 6 hours per day? What if, after 3 more years, EE decides to go back to full-time?
Policies, Notices, Handbooks Must include info re PFL and employee obligations in handbook or other written guidance if maintain the same for other types of employee benefits or leave If no written policy, manual, or handbook, must provide written guidance to each employee concerning all rights and obligations under PFL, including how to file a claim
Policies, Notices, Handbooks Recommended Contents of Policy Employee eligibility note applicable exclusions Nature and duration of benefits in accordance with law Qualifying reasons for leave Tracking of leave Procedure for requesting leave (filing a claim) Optional use of other paid time to supplement Reporting while on leave and return to work Employment benefits while on leave Waiver eligibility Non-discrimination and non-retaliation
Policies, Notices, Handbooks Policy might look similar to FMLA policy Do not recommend combining with FMLA policy - Different jurisdictional thresholds - Different eligibility - Different benefits - May consider cross-reference they run concurrently when leave qualifies for both
Policies, Notices, Handbooks Must display or post notice re PFL in a form prescribed by the Chair Notice of Compliance from carrier Display where all employees and applicants can readily view Consider posting employee fact sheet
Policies, Notices, Handbooks Notice re Method of Payment Provided by carrier or self-insured employer to employee Pay PFL benefits in same manner as wages debit card, direct deposit, check May require employee to choose debit card or direct deposit unless employee certifies need for check If pay by other than check, must provide written notice in English and primary language (when template available)
Policies, Notices, Handbooks Contents of Notice re Method of Payment Plain language statement of payment options Employee has choice of debit card or direct deposit, but employer cannot prohibit employee from receiving check if employee provides certification Employee may not be charged any fees If offering debit card option, include list of locations within reasonable proximity of home and work where employee can withdraw funds at no charge
Interplay and Challenges Other Leave Programs Practice pointer PFL provides family leave, not leave for individual s own condition Should not implicate ADA, HRL, or workers comp but beware of association claims under ADA and HRL Some cross-over with FMLA (e.g., child, spouse) Some cross-over with DBL (e.g., maternity) Potential cross-over with employer specific programs (e.g., when can/must paid leave be used)
Interplay and Challenges Other Leave Programs FMLA If concurrent use of FMLA time, employer must notify employee by providing notice per 29 CFR 825.301 and.305 Employer that fails to provide notice is deemed to have permitted employee to use PFL without concurrently using FMLA If concurrent designation but employee declines to apply for PFL benefits, employer may count leave against PFL entitlement FMLA leave for own serious health condition does not count against PFL entitlement When partial day FMLA hours aggregate to number of hours in full workday, employer may deduct one day of PFL leave
Interplay and Challenges Other Leave Programs Short-term disability (maternity) Eligible employee may elect to receive both DBL and PFL during post-partum period Cannot receive both at the same time Only PFL portion is job protected may extend job protection beyond 12 weeks allowed by FMLA depending on timing and order of leaves
Interplay and Challenges Other Leave Programs EE gives birth November 20, 2017. Is EE entitled to PFL? What if EE delivered after January 1, 2018? Can EE take more PFL leave after January 1, 2019 based on birth occurring in 2018?
Interplay and Challenges Other Leave Programs Use of Paid Time Off (PTO) to Supplement PFL only for full-day absences, not partial day Cannot mandate employee option to use Consider strategies to encourage use - If offer supplemental coverage, may condition on using up PTO first - Limit timing for use of leave
Interplay and Challenges Other Leave Programs EE needs leave to care for a child s asthma flare ups and appointments. For what types of leave is EE eligible? Can the employee choose to use PTO for full day concurrent FMLA/PFL use? Could the employer force use of PTO? What about partial-day FMLA (but not PFL) use?
Interplay and Challenges Other Leave Programs EE gives birth on January 1, 2018. The employer has a parental leave policy that provides for 6 weeks of full pay to bond with a child. Will the parental leave and PFL run concurrently? Can the employee take PFL for bonding purposes on an intermittent basis? What if the employee elects to take disability benefits before PFL?
Collective Bargaining Implications Not required to provide PFL when CBA provides PFL benefits that are at least as favorable and does not allow waiver other than as provided in regulations CBA may provide for different rules related to PFL If CBA does not provide for different rules, PFL regulations apply
Collective Bargaining Implications Potential Subject Areas Payment of premium Eligibility requirements Length of leave Procedures for requesting leave Use of accrued paid time off during leave Benefits during leave Relation to other contractual provisions Insurance provider Coverage issues re employees with multiple employers
Wrap Up QUESTIONS?
Amy L. Hemenway 716.844.3737 ahemenway@hselaw.com Luke P. Wright 585.231.1297 lwright@hselaw.com
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