Barclay Damon
Barclay Damon

Legal Alert

Employer Obligations Under the NYSPFLA

The New York State Paid Family Leave Act

On January 1, 2018, New York State’s Paid Family Leave Act goes into effect and becomes the most comprehensive paid family leave program (“PFL”) in the United States. The PFL, when fully implemented, will provide eligible employees of covered employers twelve (12) weeks of paid leave to: (1) bond with a new born, adopted or foster child; (2) care for a family member with a serious health condition; or (3) relieve family pressures when someone is called to active military service.

In addition to obtaining requisite insurance coverage (or being self-insured), employers must: (1) provide written guidance to employees concerning the PFL; (2) post the requisite Notice for employees explaining the PFL; (3) continue health insurance for employees utilizing PFL; and (4) reinstate employees to a comparable position upon return from PFL.

Written Guidance on NYSPFLA

If a covered employer has an employee handbook, information concerning leave under the PFL and employee obligations should be included. If the covered employer does not have an employee handbook, it must provide written guidance to its employees concerning their rights and obligations under the PFL. The written guidance should include, at a minimum, information about: (1) leave eligibility; (2) qualifying reasons for leave under PFL; (3) length of leave and benefit rate; (4) how to request leave under PFL; (5) continuation of health insurance; (6) how PFL is financed; and (7) waiver information. Employers who are also covered by the Family and Medical Leave Act (“FMLA”) or who provide enhanced leave benefits, need to make sure that the written guidance on the PFL properly incorporates those other benefits.

For represented workforces, the CBA may provide rules related to PFL which differ from the requirements set forth in statute if certain conditions are met. Where the CBA does not provide for the different rules, the provision of the statute shall apply.

Posting of Required Notice

Covered employers must display or post, in plain view, and keep posted a typewritten or printed notice concerning the PFL in a form prescribed by the New York State Workers’ Compensation Board. The WCB has released the required Notice entitled “Statement of Rights For Paid Family Leave” on its PFL Website. The Notice has been assigned the form number PFL-271S.

Health Insurance Continuation

Similar to FMLA, an employee who is provided group health insurance by his or her employer is entitled to the continuation of that health insurance coverage while on leave under PFL on the same terms and conditions as if he or she had continued to work.

A covered employer's obligation to maintain health insurance coverage ceases if an employee's premium payment while out on leave under PFL is more than thirty (30) days late. The employer must provide written notice to the employee that the payment has not been received, and it must be mailed to the employee at least fifteen (15) days before coverage is to cease, advising that the coverage will be dropped on a specified date at least fifteen (15) days after the date of the letter.

If the employer removes the employee from coverage for failing to pay the health insurance premium, the employer must restore the employee to coverage/benefits equivalent to those the employee would have had if leave had not been taken and premium payment(s) had not been missed, including family or dependent coverage, upon the employee’s return to work. In addition, the employee does not have to elect to maintain health insurance coverage during leave taken under PFL, and the employer, upon the employee's return, must reinstate the employee into the health plan on the same terms the employee had prior to taking leave. Finally, a covered employer shall provide written notice of any opportunity to change plans or benefits to an employee on leave.

Right To Reinstatement

Like FMLA, PFL provides for the reinstatement of an employee returning from leave to the position s/he held when the leave commenced, or a comparable position (with comparable employment benefits, pay, and other terms and conditions of employment).

However, like FMLA, PFL reinstatement is not absolute. For instance: (1) if a shift has been eliminated or overtime has been decreased, an employee is not entitled to return to work that shift or to work the original overtime hours; (2) if there is a work force reduction or lay-off which occurred during leave; or (3) the application for PFL was falsified. In all situations, the employer must be able to demonstrate that the employment action was not in retaliation for filing a claim for PFL.

Conclusion

The first leave requests are only a few weeks away. If you require any assistance in coming into compliance, please contact the Barclay Damon labor and employment attorney with whom you regularly work.


Megan E. Bahas
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Rosemary Enright
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Robert P. Heary
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Edward G. Melvin, II
p: 315.425.2783
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Scott P. Rogoff
p: 585.295.4418
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Michael J. Sciotti
p: 315.425.2774
f: 315.703.7390
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