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Proskauer senior counsel Harris Mufson and associate Laura Fant provide an overview of New York State’s Paid Family Leave law and give some tips on how to prepare for its implementation. Many of our clients have been inquiring about this new law, set to go into effect in New York on January 1, 2018. The law will require employers to provide paid, job-protected leave to eligible employees caring for family members or for certain needs relating to a family member’s military service.

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Harris Mufson: Welcome to the Proskauer Brief, hot topics in labor and employment law. I’m Harry Mufson and today I’m joined by Laura Fant and on today’s episode, we’re going to discuss New York Paid Family Leave Law. So let’s get started.

Laura, can you just provide our listeners with a brief overview of what this law is, The New York Paid Family Leave Law?

Laura Fant: Absolutely, so this law is going into effect on January 1st of 2018, and it’s going to provide for a system of paid, job protected family leave for eligible employees, that’s eligible employees working in New York. When it’s fully implemented, it’s actually set to be one of the most comprehensive family leave programs in the country, and employees are going to be able to use this time to care for a sick family member, following the birth or adoption of a child, and for certain military related reasons.

Harris Mufson: So to be clear, employees cannot use New York Family Leave Law benefits to address their own medical condition?

Laura Fant: That’s right. This law is intended to work in tandem with the New York Statutory Short-Term Disability benefits that are already in play. So effectively, if it’s an employee’s own health condition, then short-term disability or worker’s compensation in some circumstances would generally apply, but if it’s for a family care related reason, then this new Law would kick in.

Harris Mufson: Okay. And so what sort of benefits do employees get under this law?

Laura Fant: So the benefits under this law are going to be phased in over a few years. Beginning in January 2018, eligible employees will be able to receive up to 8 work weeks of job protected leave in any given 52-week period. And the benefit that they’ll receive is at a rate of 50% of their actual weekly wage, up to a statutory cap, and then over the coming years, the benefit will phase in slightly, capping out in 2021 with a benefit of 12 work weeks of leave, with a 67% wage rate benefit.

Harris Mufson: Okay. And you said before that this is paid family leave, so how does that work? How does the employee obtain this paid leave?

Laura Fant: The benefits under this law are going to be funded solely through employee payroll deductions. It will be the obligation of the employer to begin collecting these deductions to fund the benefit. And then once an employee becomes eligible, and they’re ready to begin using the benefit, they will effectively file a claim with the employer’s disability carrier, who will now also be providing paid family leave benefits and once they submit all the required paperwork and documentation, the carrier will make a determination as to their benefit and will pay out the benefit as well.

Harris Mufson: And when can employers start withholding?

Laura Fant: Employers can start withholding for this benefit at any time between now and the January 1st implementation date, so we’re recommending that employers reach out to their disability carriers nowand start talking through the process of how much it will cost to add the benefits when the premiums will become available, and that will help the employer determine when they should start collecting the deductions.

Harris Mufson: I think one question that employers have is what is the inner play between the Federal Family Medical Leave Act and this New York Family Paid Leave Law. Can you talk on that a little bit?

Laura Fant: Sure. The New York Paid Family Leave Law does not cover an employee’s own serious health condition, which, as I’m sure many of our listeners are aware, is one of the covered reasons under the FMLA. However, the other covered reasons under the Paid Family Leave Law, largely mirror reasons for leave under the FMLA. So in a lot of cases, leave under the Paid Family Leave Law will be running concurrently with FMLA, but in certain circumstances, it may not. So this is going to be a little bit of a challenge for employers to be tracking this time and making sure that the appropriate leave is being applied in any given situation.

Harris Mufson: So just to touch on the withholding for a second of this New York Family Leave Law, what if an employee says, I don’t want you withholding from my paycheck. I’m fine. I don’t need this, I don’t need the benefits under this law. What does an employer do in that circumstance?

Laura Fant: This is a statutory deduction. So an employer does have the right to take this deduction, really, whether an employee said that they would like it or not. However, the law does recognize that certain employees may not ever become eligible for benefits under this law. So just taking a quick step back, there’s some eligibility requirements under this law. Employees who work 20 or more hours per week become eligible for paid family leave after 26 consecutive work weeks and employees who work less than 20 hours a week become eligible after their 175th day of employment. The law recognizes, if you’re hiring, say, a temporary employee, or very short-term contract employee who will never actually reach that eligibility threshold, those employees will have the option to effectively waive their rights under the law. So they’ll waive the right to take deductions out of their paycheck, but in exchange, they also, of course, would not be eligible for the time. Unless they continue working to the point where they reach that eligibility threshold, in which case, they can be required to start making deductions again.

Harris Mufson: Got it. And so what sort of steps can employers start taking now in the ramp up to the effectiveness to this law, which, you know, goes into place in January of 2018?

Laura Fant: It’s coming soon. One of the first things, as I mentioned, is to reach out to your disability carrier and talk about adding the appropriate coverage. Certainly, just educating yourself and your HR staff, and anybody who helps manage employee leave, to make sure that everybody knowt what is required under this law and what is to be expected in January and reviewing your policies. The law does include a notice provision, so employers will be obligated to update their policies, and communicate information about this law to their employees. And as we talked about, there’s some interplay with the FMLA and potentially some other laws, so it’s worthwhile, starting now, to take a look at your handbook to see what changes may need to be made.

Harris Mufson: And not a bad time to plug. So we have a model policy, right?

Laura Fant: We do.

Harris Mufson: And if anyone’s interested, we’re obviously happy to discuss that will them and help them navigate through the complex area of this law. I know there are a lot of complicated questions that we touched on today and employers are going to have more, so we’re always happy to help with that.

Laura Fant: Absolutely. We have the model, but it really is going to be a tailoring to each employer’s own specific needs. So we encourage you to give us a call.

Harris Mufson: Thank you for joining us on a Proskauer Brief today. Stay tuned for more insights on the latest hot topics and labor employment law, and be sure to follow us on iTunes

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