Tag Archives: leave

NEW YORK PAID FAMILY LEAVE: A Peek At The Most Comprehensive Paid Family Leave Program In The U.S.

This summer, New York joined the small group of U.S. states that offers paid family leave to employees. New York’s Workers’ Compensation Board adopted final regulations implementing paid family leave, the Paid Family Leave Benefits Law (“NY PFL law”), which goes into effect on January 1, 2018. The New York law has been dubbed one of the most comprehensive paid family leave programs in the nation. The NY PFL applies to all employers with employees working in New York for 30 or more days in a calendar year. The New York law is a benefit for people who work in New York; it does not matter where the employer is headquartered or where the employee lives.

The new law covers both full-time employees that have worked at least 20 hours per week for at least 26 consecutive weeks and part-time employees that have worked at least 175 days within a 52 consecutive-week period. Once an employee has met one of the two aforementioned eligibility requirements, paid leave will be granted in the following situations:

• To provide physical or psychological care and support to a family member due to a family member’s serious health condition;

• To bond with a newborn child during the first year of the child’s life or, if an adopted or foster care child, for the first year after the placement of a child with the employee; or

• For any qualified reason as provided for under the federal Family and Medical Leave Act (“FMLA”) arising from the employee’s spouse, domestic partner, child, or parent being active military duty, or being notified of an impending call or order to active military duty.

Employees on leave will receive up to 50% of the state’s average weekly wage for up to eight weeks in 2018 and this amount will gradually increase during the coming years, reaching 67% of the state average weekly wage for up to twelve weeks by 2021. The program is mandatory for private employers with one or more employees while public employers may opt into the program.

New York’s law is significantly more generous than the FMLA, which does not require paid leave and only applies to employers with 50 or more employees within a 750-mile radius of the worksite at which the employee is employed. Another key difference is that while FMLA requires employees to first use accrued Paid Time Off (“PTO”), an employer under the NY PFL law cannot require employees to use PTO before paid family leave unless that employee is eligible for both FMLA and NY paid family leave. Other benefits under the NY PFL law include continued health benefits during leave as if the employee continued to work, and reinstatement to the same or comparable prior position of employment without reduction in accrued benefits.

The NY PFL law does contain some restrictions on when employees can utilize paid family leave. For example, employees who are eligible for disability benefits and paid family leave benefits may only receive a combined amount of 26 weeks of disability and paid family leave benefits in a 52-consecutive calendar week period, and may not collect benefits for short term disability and paid family leave concurrently. The regulations also list various situations in which paid family leave benefits may not be available to the employee, such as when the employee is collecting sick pay or PTO from the employer, receiving total disability payments pursuant to workers’ compensation, or working part of the day with pay for the employer or any other employer.

Funding for paid family leave will come from employee contributions of up to $1.65/week for 2018. While it is unclear whether the short-term disability insurance carriers required to provide paid family leave benefits will be able to charge an amount in excess of the employee contributions, the intent behind the law is to ensure that the employee contributions are sufficient to fund all paid family leave costs. Employers who either currently self-insure for short-term disability benefits or who provide paid family leave to public employees not represented by employee organizations are given the option to self-insure for paid family leave, but must do so before September 30, 2017. However, self-insurance comes with a risk of bearing paid family leave costs not covered by employee contributions.

In addition to the heightened benefits, the NY PFL law adds notice requirements that may not be ignored. Employers must provide written notice to employees regarding their rights under the NY PFL law, including how to file a claim for leave. Employers must also post a prescribed notice regarding the NY PFL. Employees are also subject to notice requirements, as the law mandates 30 days’ advance notice of intent to take paid family leave.

Looking forward, employers should determine whether to obtain separate coverage for these benefits. Employers that insure short-term disability benefits should contact their insurance carriers to determine when payroll deductions for paid family leave should go into effect. Private employers that self-insure short term disability must determine whether they will elect to self-insure paid family leave, and must do so no later than September 30, 2017. The NY PFL law is much broader than FMLA, meaning that more employees can take leave than before and various leave policies will overlap in a new and complicated manner. Employers should review and update their employee handbooks, notices, plan documents, summary plan descriptions, and leave forms to ensure compliance with the new law.


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Asking An Employee On FMLA Leave To Work: Interference Or Not?


The timing of FMLA leave is not always convenient for employers. But, what can a company do when an employee who is important or even essential to a business function goes on FMLA leave before the work has been completed? Although a recent court decision did not directly answer this question, it did frame the issue of how much work-related contact with an employee on FMLA leave constitutes interference with that leave.

The plaintiff in Smith-Schrenk v. Glennon Energy Services worked in the company’s ethics and compliance department. In that department, she was required to work 50 to 60 hours a week. About two years after she began her employment, the plaintiff began missing work in order to care for her mother and because of her own health needs. She first requested intermittent FMLA leave and then asked that the leave be made full-time, or continuous. Sometime later, the plaintiff resigned her employment, but alleged that she had been constructively discharged because of certain actions taken by the company which she claim were designed to lead to her termination. The plaintiff also alleged interference with her FMLA leave and claimed that the company continued to call and email her during her leave, requiring her to work 20 to 40 hours while she was on leave.

The court reviewed the company’s motion for summary judgment and dismissed all the causes except the interference claim related to the plaintiff’s allegations relating to the work she alleged she was forced to perform while on leave. In examining that claim, the court noted that the FMLA makes it unlawful for any employer to interfere with, restrain or deny the exercise of or attempt to exercise, any right provided under the FMLA. The term “interfering with” was found to include not only refusing to authorize FMLA leave, but “discouraging an employee from using such leave.”

The court noted that the general consensus among the courts is that reasonable contact limited to basic, business-related inquiries about the location of files as well as institutional or status-related knowledge will not interfere with an employee’s FMLA rights. Significantly, the court noted that there is no right in the FMLA to be “left alone” or to be completely relieved from responding to an employer’s “discrete inquiries.” Further, it found that fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.

On the other hand, asking or requiring an employee to work while on leave can cross the line into interference. The court noted that by requesting an employee to perform work during FMLA leave, the employer not only discourages the employee from using such leave, but actually precludes the employee from using such leave during that period of time.

The court then concluded that since there was a dispute about whether the plaintiff was actually required to perform work during her leave and, if so, how much work she was required to perform, the matter should go to a jury.

Even though the issue was not specifically decided, the decision in Smith-Schrenk is instructive to employers. In today’s workplace, there are many jobs that an employee cannot simply walk away from, simply given the nature of the job responsibilities or its importance to the company’s function. Inevitably, there will need to be some contact with individuals on FMLA leave in order to gain information or learn about the status of a matter, or even to bring a task or project to closure, even though the employee legitimately is on leave. However, where the contact with the employee involves a request for work beyond the responses to “discrete inquiries” referenced by the court in its initial analysis, employers should tread carefully. Even if the employee agrees to or acquiesces in such work, that may not be enough to justify the employer’s actions and avoid a claim of FMLA interference. Employees may be able to claim that they felt they had no choice and that a refusal to perform could have impacted their job status. Clearly, with respect to job-related contacts with an employee when they are on FMLA leave, “less is more.”

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