FMLA and NY Paid Family Leave: How Do They Coincide?

Published by Jason Barnes on April 3, 2017

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At the Capital Region Human Resource Associations 2017 One-Day Conference, nationally recognized labor attorney, John Bagyi, Esq., provided a brief overview of the draft NY Paid Family Leave regulations released last February, and discussed how the regulation will interact with FMLA. Always amazes me how Mr. Bagyi can take the dryest of regulatory topics, pepper them with story, and make them sticky for the audience.

In this brief blog, I’ve pulled some tables and notes from his March 23rd presentation for readers to have a quick-fact sheet on what to expect for NY Paid Family Leave come next January. Of note, the NY Workers’ Compensation Board will be receiving comments on the draft regulation through April 7, 2017. Final regualtions are anticipated this June, as participating insurance companies will need ample time to finalize new products to bring to market.

First, Mr. Bagyi offered a quick side-by-side comparison chart of FMLA vs. NY Paid Family Leave.

	FMLA	NY Paid Family Leave
Covered Employees	50 or more employees	All employers subject to Workers’ Compensation Law
Eligible Employees	Employed for 12 months and worked 1,250 hours in the preceding 12 months	If works >20hrs/wk: Employed for 26 consecutive weeks (no hours requirement) If works<20hrs/wk: Employed for 175 days
Length of Leave	Up to 12 weeks in a 12 month period	Up to 12 weeks (phased in 2018-2021, see chart below)
Health Insurance	Maintain as if actively employed	Maintain as if actively employed
Job Restoration	Entitled to position held prior to leave, or to an “equivalent” job, which means virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions	Entitled to position held prior to leave or a comparable position with comparable benefits, pay, terms and conditions of employment

One of the primary differences between FMLA and NY Paid Family Leave is how each regulation defines the term “Family Member.”

	“Family Member” Definition
FMLA	child parent spouse
NY Paid Family Leave	child parent (and in-law) spouse grandparent (and in-law) grandchild domestic partner

Under NY Paid Family Leave, employees may take paid leave in order to bond with a newborn, adopted, or foster child within 12 months of birth or placement. It can also be used to care for a family member with a serious health condition. It cannot be used for one’s own personal health condition.

The phasing in of NY Paid Family Leave Benefits will take place over the course of three years, with an increasing benefit in subsequent years. Percentage of wages is based on the employee’s average weekly wages, which is calculated based on the 8 weeks preceding the leave event, or the average state weekly wage, which is currently set at $1,296.48, whichever is less.

Effective Date	Benefit (% of wages)	Max. Length
January 1, 2018	50%	8 weeks
January 1, 2019	55%	10 weeks
January 1, 2020	60%	10 weeks
January 1, 2021	67%	12 weeks

In the case of unionized workplaces, where Collective Bargaining Agreements (CBAs) provide a family leave benefit equal to or exceeding the benefit provided by NY Paid Family Leave, employers do not have to provide the benefit under the law.

Regarding NY Paid Family Leave and its relationship with FMLA, the benefit will run concurrently with FMLA provided that the employee is entitled to FMLA and that the employer has extended an FMLA designation notice to the employee. It cannot run concurrently with disability. Furthermore, the draft regualtions allow employers to permit (but not require) employees to use paid time off for all or part of their leave.

We are following this regulation closely, so please subscribe at the top of this page and stay tuned for further updates. If leave management is also an area that you’d like to improve upon, click here to learn more about Benetech’s leave of absence management services.