On April 4, 2016, New York State Governor Andrew M. Cuomo signed into law a bill, N.Y. State Senate Bill No. 3004-A, N.Y. State Assembly Bill No. A. 3870A (the “paid family leave law” or the “new law”) which, effective January 1, 2018, requires all private employers in New York State and many public employers in New York State to allow employees to take, and to return to their jobs after taking, as much as twelve (12) weeks of paid leave in a twelve-month period (1) to participate in providing care made necessary by a “serious health condition” of a child, spouse, domestic partner, parent, grandchild, grandparent, sibling, or parent of a spouse or domestic partner, (2) to bond with the employee’s child during the first twelve months after the child’s birth, or the first twelve months after the placement of the child for adoption or foster care with the employee, or (3) because of any “qualifying exigency” arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the U.S. armed forces.

Under the new law, leave taken by an employee from work in the above circumstances is called “family care” leave.

The paid family leave law applies to, among other entities, all nongovernmental employers having one or more employees.

A full-time employee is eligible for family care leave when he has been employed for not less than 26 consecutive weeks.  A part-time employee is eligible for family care leave when he has been employed for not less than 175 days.

Employees returning from family care leave are entitled to be restored by their employers to the positions of employment held by them when the leave began, or to comparable positions with comparable employment benefits and pay.

Benefit amounts for family care leave will be phased in over several years, as follows:

January 1, 2018 through December 31, 2018: Employees will be eligible for up to eight weeks of family care leave paid at 50% of the employee’s average weekly wage, up to a maximum of 50% of New York State’s average weekly wage;

January 1, 2019 – December 31, 2019: Workers will be eligible for up to ten weeks of family care leave paid at 55% of the employee’s average weekly wage, up to a maximum of 55% of New York State’s average weekly wage;

January 1, 2020 – December 31, 2020: Employees will be eligible for up to ten weeks of family care leave at 60% of the employee’s average weekly wage, up to a maximum of 60% of New York State’s average weekly wage; and

January 1, 2021 and thereafter: Workers will be eligible for up to twelve (12) weeks of family care leave at 67% of the employee’s average weekly wage, up to a maximum of 67% of New York State’s average weekly wage.

Benefits for family care leave will be paid for by an insurance policy obtained by the employer on behalf of its employees, the entire cost of which will be paid by payroll contributions of the employees.

Under the new law, in any case in which the necessity for family leave is foreseeable based on an expected birth, an anticipated placement of a child for adoption or foster care, or planned medical treatment, the employee must provide the employer with not less than 30 days notice of the employee’s intention to take family leave, except that if the date of birth, placement, or treatment, as the case may be, requires leave to begin in less than 30 days, the employee must provide the employer with such notice as is “practicable.”

Under the paid family leave law, an employer may offer an employee who has accrued but unused vacation time or personal leave to choose whether (i) to charge all or part of the family care leave to this unused time and receive full salary, or (ii) to not charge time to accrued but unused vacation time or personal leave, and receive family care leave benefits.

Take-Aways for Employers

By January 1, 2018, employers in New York State must modify their policies regarding absence for family-related reasons to conform to New York’s paid family leave law.

The purposes for which New York State’s new law makes employers allow employees to take paid family care leave closely track the reasons for which the federal Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (the “FMLA”) makes employers permit workers to take unpaid leave.  However, the FMLA applies only to employers with 50 or more employees, whereas New York State’s new law governs, among other entities, all private employers having one or more employees.

Consequently, New York State’s new law imposes, for the first time, on private employers in New York State having one to 49 employees an obligation to allow employees to take extended leave for the above-described, family-related reasons.

There is some overlap between the purposes for which New York State’s new law makes employers let workers take paid family care leave and the reasons for which the New York City Earned Sick Time Act, N.Y.C. Admin. §§ 20-911 – 20-924 (the “Earned Sick Time Act” or the “NYCESTA”) makes employers in New York City let workers take paid sick time.  (For this author’s posts on the NYCESTA, see here and here.)

Specifically, the Earned Sick Time Act requires employers in New York City to allow workers to take paid sick time for, among other purposes, care of a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care.

However, NYCESTA applies only to employers with five or more employees, whereas New York State’s new law applies to all private employers having one or more employees.  Further, NYCESTA caps paid sick time at five days per calendar year per employee, while New York State’s new law authorizes as much as twelve (12) weeks of paid leave in a twelve-month period for each employee.

As a result, New York State’s new law imposes, for the first time, on private employers in New York City having one to four employees an obligation to allow employees to take paid leave for the above-mentioned, family-related reasons.  So, too, New York State’s paid family leave law imposes, for the first time, on all private employers in New York City an obligation to let workers take lengthy periods of paid leave for the above-described, family-related purposes.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

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