For starters, the new law does not provide for paid leave because of an employee’s own medical condition or need. Rather, the law provides for paid leave for employees to support family members (as specifically defined) and only for three specific categories of need:
- To participate in providing care for a family member of the employee made necessary by a “serious health condition” of that family member;
- To bond with a child of the employee in the first 12 months after the child’s birth or the placement of the child for adoption or foster care with the employee;
- To meet a “qualifying need” (described below) of the employee’s spouse, domestic partner, child or parent who is on active duty (or has been notified of an impending call to active duty) in the U.S. military.
Some More Details: Serious Health Conditions
“Serious health condition” is defined as an illness, injury, impairment or physical or mental condition that requires inpatient care or “continuing treatment” by a health care provider. “Continuing treatment” is been defined to include a long list of situations, including:
- A period of at least 3 days during which the family member cannot attend work or school, or is otherwise incapacitated that also involves medical treatment;
- A period when the family member cannot attend work or school, or is otherwise incapacitated due to a chronic health condition;
- A period when the family member cannot attend work or school, or is otherwise incapacitated because the family member is receiving treatment.
The law tries to limit the circumstances in which paid leave is available in a number of other ways:
- “Family member” is defined to include the employee’s child, grandchild, spouse, domestic partner, parent, grandparent or sibling. It also includes the parent of the employee’s spouse or domestic partner. But note – the term “parent” can also include a person who “stood in a parental relationship” to the employee.
- The law requires documentation from the family member’s medical provider (containing information about the family member’s condition) and from the employee (stating that the employee is the primary caregiver for the family member).
Although the law attempts to limit leaves to “serious” conditions and require supporting documentation, the definition of “serious” health condition is so broad that creative employees should have little difficulty in justifying paid leave.
Some More Details: Qualifying Military Leave
The New York paid leave act contains few details about leave for military needs – because the law refers specifically to detailed rules under the federal Family Medical Leave Act (“FMLA”). The FMLA describes eight different types of situations where leave for military need can be taken, including child care, making financial or legal arrangements, attending counseling, and spending time with a family member on leave for rest and recuperation during a deployment.
Employers subject to FMLA (those with 50 or more employees for at least 20 weeks) may be familiar with the applying these rules, while smaller employers will need to start learning these rules. However, even employers covered by FMLA will have some new rules to learn; for example, the NY law uses a different definition of covered employee (26 weeks’ employment for full-time employees and 175 days’ employment for part-time employees) than FMLA (12 months’ employment and at least 1,250 hours worked in last 12 months).
Getting Ready: Time for Some Teamwork
Administering this law will require a joint effort between employers and their insurance carriers. Over the next few months you can expect more communication from your carrier about implementation of this new law. Stay tuned.