Resource Guide

1 Resource Guide :What Employers Need to Know About New York s ImpendingPaid Family Leave Benefits Law and Final RegulationsOn July 19, 2017, the New York State Workers Compensation Board ( WCB ) issueditsfinal regulations( Regulations ) for the New York Paid Family Leave Benefits Law( PFLBL or Law ), which, effective January 1, 2018, will provide most New York-basedemployees with paid family leave the same day that these Regulationswere published, the WCB also issued anAssessment of Public Comment( Assessment ), which addresses certain public comments to the prior iteration of York State has also published two fact sheets one foremployeesand one foremployers outlining the basic elements of the PFLBL.

2 And finally, the New York StateDepartment of Taxation and Finance issuedguidanceregarding certain tax implicationsof the following summarizes what New York employers need to know about the Summary of BenefitsWhen fully implemented, New York s PFLBL will provide up to 12 weeks of PFL during a52-consecutive week period to employees for the following purposes: to participate in providing care, including physical or psychological care, for afamily member of the employee made necessary by a serious health condition3of the family member;41 The WCB first published regulations to the PFLBL in February 2017, and then updated those regulationsin May.

3 A review of the changes between the earlier regulations and the final regulations may be found inthe blog post titled New York Paid Family Leave Regulations Finalized: How Do They Compare to PriorVersions? (hereinafter Blog Post ).2 See the Blog Post for an analysis of how the Regulations and Assessment modified the WCB s priorinterpretation of certain aspects of the definition of a serious health condition is the same as under the federal Family and Medical LeaveAct ( FMLA ).2 to bond with the employee s child5during the first 12 months after the child sbirth, or the first 12 months after the placement of the child for adoption or fostercare with the employee; or because of any qualifying exigency, as interpreted under the federal Family andMedical Leave Act ( FMLA ), arising out of the fact that the spouse, domesticpartner, child, or parent of the employee is deployed abroad on active duty in Armed Forces (or has been notified of an impending call or order to activeduty abroad).

4 Unlike New York s disability benefits, there will be no waiting period before employeesbecome eligible to receive PFL benefits; benefits will be payable immediately upon theoutset of the length of available leave benefits and amount of weekly benefits will increaseyearly, on the following schedule:DateLength of BenefitsWithin a 52-WeekPeriodAmount of Benefit PaymentsJanuary 1, 2018Up to 8 weeks50% of average weekly wage, not to exceed50% of the state average weekly wage(currently $ per week)January 1, 2019Up to 10 weeks55% of average weekly wage, not to exceed55% of the state average weekly wage (TBD)January 1, 2020Up to 10 weeks60% of average weekly wage, not to exceed60% of the state average weekly wage (TBD)January 1, 2021Up to 12 weeks67% of average weekly wage, not to exceed67% of the state average weekly wage (TBD)The carrier (or employer if self-insured)

5 May provide PFL benefits via debit card ordirect deposit or by family member means a child, parent (including parent-in-law), grandparent, grandchild, spouse, ordomestic partner, as these terms are defined in the New York State Workers Compensation Law. Notethat this is a broader definition than under the federal child means biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward,a son or daughter of a domestic partner, or the person to whom the employee standsin loco Employee EligibilityEmployees6become eligible for PFL benefits upon working either of the following: 26 consecutive weeks (for employees whose regular employment schedule is 20or more hours per week) or 175 days (for employees whose regular employment schedule is less than 20hours per week).

6 7 Any time off otherwise provided by an employer, where the employee is away from workbut is still considered to be an employee by the employer (including paid vacation,personal days, sick leave, holidays, or other approved time away from work), countstoward the employee s consecutive workweeks for purposes of determining eligibility forPFL, provided that, during the period of time off, the employer continues to make therequired payroll contributions for that particular employee. However, periods oftemporary disability during which an employee receives disability benefits under theWorkers Compensation Law arenotcounted toward weeks or days worked fordetermining PFLBL , for positions in which breaks in service are inherent, such as professorswho have semester breaks, such periods of absence are not counted against theemployee in determining whether the 26-consecutive week service period requirementis satisfied (but those break periods are not counted as time worked).

7 The PFLBL applies only to employees who work in New York State. Employees whoprimarily work outside of New York State, but only incidentally work in New York, arenotcovered by the Law. The term incidentally is not defined in the Law, Regulations,or EmployeeContributionsThe New York State Department of Financial Services released its determination thatthe rate of contribution for PFL will be percent of an employee s weekly wage, upto a maximum of $ per week ( percent of the statewide average weekly wage,currently $1,305).6 Certain categories are excepted from the definition of employee, including independent contractorsand livery drivers covered for work-related injuries by the Independent Livery Disability Benefits Fund andblack car operators covered by the Black Car Operator s Family leave waiver section of the PFLBL states that waivers are permissible if an employeewhose schedule is less than 20 hours per week will not work at least 175 days in a 52-week.

8 The Eligibility section of the Law is not clear as to whether this 175-day requirement must besatisfied within a 52-weeek the PFLBL becomes effective on January 1, 2018, employers have beenpermitted (but not required) to make PFLBL payroll deductions since July 1, is not clear whether, as of January 1, 2018, an employer may opt to makecontributions on its employees behalf, or, alternatively, if the employer will be requiredto deduct from employees paychecks to fund its insurance policy. Further, while theLaw does not require employers to provide notification to employees that deductions willbegin, as noted below, it is generally a best practice to notify employees prior to makingany deductions from their must use all contributions to either purchase a PFL policy from an insurancecarrier or to self-fund a policy.

9 All surplus contributions that exceed the actual cost of theannual premium for the PFL policy must be promptly returned to Calculating LeaveEligibilityThe 52-consecutive-week period referenced above is measured on a rolling backward basis. In other words, the amount of leave available to an employee is measured byreviewing how much PFL or New York State short-term disability benefits8the employeehas taken in the previous 52 weeks, as of the first date that PFL benefits would is consistent with one of the most common methods of calculating leave under thefederal employers instead use a rolling forward or calendar year method for calculatingFMLA eligibility, this may pose administrative difficulties in managing leave eligibilityunder both the FMLA and PFLBL.

10 Therefore, New York employers that do not currentlyuse the rolling backward method of calculating FMLA leave may wish to consideradopting that method at this employers do elect to change methods ofcalculating eligibility, certain notice requirements under the FMLA will LeaveEmployees who work at least five days per week may take up to 60 days of PFL peryear (once the benefit is fully effective , 12 weeks of leave is available). For8As noted below, an employee may only receive a combined total of 26 weeks of disability benefits andPFL benefits in a 52-consecutive-week that under the FMLA, leave eligibility must be calculated on a rolling forward basis for Servicemember Family Leave (sometimes known as military caregiver leave ).