2018 Paid Family Leave Cheat Sheet

For most of us January 1, 2018 means a fresh batch of New Year’s resolutions we almost certainly will (not) keep this year.  January 1 also happens to be the effective date of New York’s Paid Family Leave regulation (PFL). Unfortunately, unlike that resolution to lose weight or learn to play the mandolin, this is one resolution you will be required to keep. Fortunately, the Buffalo Niagara Partnership is here to help with a PFL cheat sheet.

What do you need to know about this new law?

Starting on January 1, 2018 all eligible employees (see below) can take up to 8-weeks of PFL in any 52-week period.  This increases to 10 weeks in 2019 and 12 weeks in 2021. There is no increase in 2020. Leave can be taken intermittently but can only be taken in full day increments.

In addition, on January 1st all covered employers (see below), if they have not already done so, must begin to take PFL deductions from employees’ pay. Employers are required to obtain PFL coverage from the same carrier as provides their disability coverage.  A list of carriers offering PFL coverage can be found here.

Once coverage is secured employers must obtain a form (PFL-120) from their insurance carrier or licensed agent.  The form must be displayed in a conspicuous location, similar to what is done for Workers’ Compensation and Disability Insurance.

Employers are also required to inform their employees about their rights under Paid Family Leave, either in an employee handbook or other written materials.  Sample employee manual language can be found here.

Who is covered?

  • Any private employer with at least 1 employee
  • Employees who are regularly scheduled for 20 hours or more per week become eligible after 26 consecutive weeks of work immediately preceding the first day of leave.
  • Those employees that are regularly scheduled for fewer than 20 hours per week become eligible after the 175th day of actual work immediately preceding the first day of leave.

More information on eligibility requirements can be found here.

If an employer has any employees who will not reach the time-worked requirement for eligibility, they may want to offer the employee the option to waive coverage. The employee can sign this waiver.  Employers should keep this form on file.

Who is not covered?

Excluded from the definition of employee are:

  • Spouse or minor child of employer
  • Certain clergy
  • Professionals, teachers or volunteers for religious, charitable or educational institutions
  • Independent contractors
  • Certain livery drivers and black car operators


For what reasons can leave be taken?

Leave can be taken to:

  • Bond with newborn child within first year of life and adoption or foster placement within first year
    • Important to note that leave can be taken to care for a child that was born or adopted prior to the January 1, 2018 effective date as long as the leave falls within the first 12 months of birth or placement.
  • Care for a family member with serious health condition
    • Family member includes: Child, parent (includes parent-in-law), grandchild, grandparent, spouse, domestic partner
  • Relieve family pressure when family member called to active duty
    • Family member includes: Spouse, domestic partner, child, parent
  • PFL CANNOT be used for an Employee’s own serious health condition.


How much pay is an employee on PFL entitled to?

As of January 1, 2018, an employee is entitled to 50% of the lower of:

  • the employee’s average weekly wage rate or
  • the state average weekly wage

On January 1, 2019 this will increase to 55% of the lower of:

  • the employee’s average weekly wage or
  • 55% of the state average weekly wage

On January 1, 2020 the rate will increase to 60% of the lower of:

  • the employee’s average weekly wage or
  • 60% state average weekly wage on January 1, 2020

Finally, on January 1, 2021 and thereafter the rate will be 67% of the lower of

  • the employee’s average weekly wage or
  • 67% of the state average weekly wage

Note that an employee’s average weekly wage is computed as the average wage of the eight weeks immediately preceding leave.  Wages can be paid by carrier by check, direct deposit or debit card subject to certain rules

When are otherwise eligible employees not entitled to leave?

When:

  • Employee is receiving NYSDBL
  • Employee works partial day for pay
  • Total disability under NYSWCL
  • Not an employee
  • On administrative leave


What is the cost to employees?

Rate:

  • Weekly employee contribution is .126% of employee’s weekly wage capped at NYS average weekly wage (in 2016 was $1,305.92)
  • Maximum contribution in 2018 is $1.65/wk
  • If they have not already started to take PFL deductions employers MUST begin deductions by January 1, 2018
  • May begin deductions prior to employee’s eligibility for PFL

While not required employers may want to inform their employees that there will be withholdings for PFL and how much those withholdings will be.  A sample notice can be found here.

An estimate of an employee’s weekly deduction can be obtained here.

How must an employee take PFL?

  • Employee must give thirty days notice if the leave is foreseeable
  • If the reason for the leave is not foreseeable notice must be given as soon as practicable.
  • An employer may request that notice must be given before each day of intermittent leave.
  • If employee fails to provide proper notice benefits may be denied for period of up to 30 days from the date notice was provided
  • In order to take leave the employee must file a claim with the PFL carrier
    • Forms can be found here.
    • Once complete carrier must pay or deny within 18 days


What about vacation/personal/PTO?

  • An employer cannot require an employee to use vacation/personal/PTO to receive full salary while on leave.
  • If an employee does decide to use vacation/personal/PTO concurrently with PFL the employee can receive reimbursement from carrier.
Bradford J. Lachut, Esq. Headshot

About Bradford J. Lachut, Esq.

Senior Manager, Government Affairs & Economic Development