New York’s paid family leave act goes into effect January 1, 2018. The new law allows employees to take paid leave to (i) bond with a child after the birth or placement of that child, (ii) care for a family member, and (iii) provide support for a family member in the military. The new law would represent an administrative challenge (especially for smaller employers) if it were the only leave law that employers had to administer. However, employers are also responsible for administering other leave laws; this overlap is likely to make the new paid leave law even more of a challenge.
In trying to administer the new law and coordinate this with other leave mandates, here are some key interactions that employers should note:
- Employees cannot take both a disability leave and a paid family leave at the same time. So far, so good. However, employees can take consecutive leaves. For example, an employee can take a disability leave after the birth of a child and this can be followed by a paid family leave to bond with the child. However, there is a 26-week limit (within any 52-week period) on all leaves that can be taken under NY’s disability law (which covers the new family leave law). Accordingly, an employee cannot take the maximum 26 weeks for disability – such as for childbirth – and then take the 8-week maximum for bonding with a child. So, employers will need to monitor leaves under various programs to administer this overall limit.
- Employees can take leave to bond with a child any time in the 52-weeks after the birth or placement of that child. So, the leave to bond with a child can occur almost a full year after the leave for the birth of the child is completed. This also means that employees may be eligible for leaves to bond in 2018 – even if the child was born in 2017 (prior to the effective date of the New York paid leave law.
- The NY paid family leave law allows employers to require that employees take paid family leave concurrently with family leave under the federal FMLA. However, if the employer fails to notify an employee that paid leave and FMLA leave are being administered concurrently, the employer cannot require concurrent use of paid family leave and FMLA leave.
- Under the NY paid family leave law employers may not require employees to use paid time off prior to using paid family leave. But, under the federal FMLA, employers can require that employees take paid time off prior to taking unpaid FMLA leave. This would seem to enable employees to “override” the FMLA rule (that employers can first require use of paid time off) by exercising their right under NY law to take paid family leave before using paid time off.
NY’s paid family leave law and the federal FMLA also have a number of different definitions and eligibility requirements. For example:
- An employee is eligible for FMLA after working for an employer for at least 12 months and completing at least 1,250 hours during the 12 months prior to the start of the FMLA leave. Also, an employee is covered by FMLA only if the employee works at a location where at least 50 employees are employed at the location or within 75 miles of the location. An employee is eligible for NY paid family leave after 26 weeks of employment (175 days for part-time employees) and employees are covered by the NY law regardless of the number of employees at their work location.
- An employer is covered by FMLA only if the employer has at least 50 employees for at least 20 workweeks in the current or preceding calendar year. The NY paid leave law applies to all private employers in NY and does not have a minimum number of employees to trigger coverage.
- FMLA leave is available to care only for an “immediate” family member – a spouse, child or parent of the employee. NY paid family leave law extends to caring for broader range of individuals, including: siblings, domestic partners, parents in-law, grandparents, grandchildren, and persons who have served in the role of a parent for the employee.
The bottom line is that NY’s paid family leave law cannot be administered in isolation, but must be administered in conjunction with other NY law (e.g., disability coverage) and federal (e.g., FMLA) law. Coordinating these overlapping (and, occasionally, contradictory) laws will be a challenge for employers – and their advisors.