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April 27, 2016

New York State Enacts Paid Family Leave Act

New York State recently enacted the most progressive Paid Family Leave Act ("PFL") in the Country, affecting virtually all private-sector employers in New York State.

Beginning on January 1, 2018, private-sector employees who have worked for their employer for at least 6 consecutive months will be entitled to take up to 12 weeks of paid, job-protected family leave: (1) to bond with the employee's newborn child or adopted or foster child during the first 12 months after birth or placement with the employee; (2) to "participate in providing care" for a family member (a child, parent, grandparent, grandchild, spouse, or domestic partner) with a serious health condition; or (3) because of a qualifying exigency arising out of the fact that the employee's spouse, domestic partner, child, or parent is on active military duty (or has been notified of an impending call or order to active duty).

The amount of leave and pay under PFL will be phased in beginning in 2018 through 2021 as follows:

  • On or after January 1, 2018, eligible employees will be entitled to 8 weeks of paid, job-protected family leave at 50% of their average weekly wage (capped at 50% of the statewide average weekly wage);
  • On or after January 1, 2019, eligible employees will be entitled to 10 weeks of paid, job-protected family leave at 55% of their average weekly wage (capped at 55% of the statewide average weekly wage);
  • On or after January 1, 2020, eligible employees will be entitled to 10 weeks of paid, job-protected family leave at 60% of their average weekly wage (capped at 60% of the statewide average weekly wage); and
  • On or after January 1, 2021, eligible employees will be entitled to 12 weeks of paid, job-protected family leave at 67% of their average weekly wage (capped at 67% of the statewide average weekly wage).

PFL currently does not require employers to fund any portion of the family leave benefit. Instead, the paid leave will be financed solely through employee payroll deductions, slated for up to 45 cents a week beginning in 2018 and to be reviewed by New York's Superintendent of Financial Services each year thereafter.

Employees who avail themselves of PFL, will be entitled to return to the same position they held when the leave began or to a comparable position with comparable employment benefits, pay and other terms and conditions of employment.

Unlike the federal Family and Medical Leave Act ("FMLA"), which applies to employers with 50 or more employees, PFL applies to virtually all private-sector employers in New York State, regardless of size. Also unlike the FMLA, PFL allows for paid, job-protected leave to care for family members only; it does not require employers to provide paid, job-protected leave for an employee's own serious health condition. While employers who are subject to the FMLA, the Americans with Disabilities Act ("ADA"), and/or the New York State Human Rights Law ("NYSHRL") may still be obligated to provide "job-protected" leave to employees for their own serious health conditions, such leave does not have to be paid. Further, PFL allows for paid intermittent leave only in full day increments; thus, employees will not be eligible under the Act to receive pay for leave taken in partial day increments.

New York employers should review and revise their current leave policies or implement new policies to account for this new law. If you have any questions regarding the Paid Family Leave Act please contact the Barclay Damon, LLP Labor & Employment attorney with whom you normally work or any attorney in our Labor & Employment Practice Area.

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