New York Proposes Regulations On New Paid Family Leave Law

Last year, New York Governor Andrew Cuomo signed the New York Paid Family Leave Benefits Law ("PFLBL").1 This law will provide eligible employees up to 12 weeks of paid family leave, to be funded through a payroll tax on full-time and part-time employees, to care for an infant or for a family member with a serious health condition, or to assist with family obligations when a family member is called into active military service.2 On February 22, 2017, the State of New York filed its proposed regulations implementing the PFLBL, which do not become effective until after the 45-day notice-and-comment period, or until April 8, 2017. This article discusses certain aspects of the proposed regulations.3

Leave Entitlement for Full-Time and Part-Time Employees

The proposed regulations clarify that both full-time and part-time employees are eligible for paid family leave benefits. Full-time employees become eligible after 26 consecutive weeks of work, and part-time workers become eligible on the 175th day of work, regardless of the number of hours they work per week and regardless of the number of employees employed by their employer.4 Thus, employees may be eligible for New York paid family leave benefits even if they are not eligible for leave under the federal Family Medical Leave Act ("FMLA"). Part-time employees are entitled to only a pro-rated percentage of the maximum paid family leave benefit available for full-time employees.5

Coordination with Other Leaves

Under the proposed regulations, employees who qualify for both FMLA leave and the new state paid family leave must use leave under both statutes concurrently. However, employees may not stack FMLA and PFLBL leave time to take more than 12 weeks of family medical leave, or receive paid leave in excess of the maximum duration of leave permitted at the time by the phase-in schedule.6 Unlike with FMLA leave, employees may not concurrently receive New York State disability benefits and paid family leave benefits or paid sick leave under the New York City Earned Sick Leave Act.7

Dispute Resolution

The new legislation authorized the promulgation of alternative dispute resolution procedures for claims arising under the PFLBL. The proposed regulations establish these procedures. If adopted, they will require any claim-related dispute under the PFLBL, including eligibility, benefit rate, and duration of paid leave, to be resolved through arbitration.8 The Chair of the Workers' Compensation Board will be charged with appointing and disqualifying arbitrators to resolve these disputes.9 Arbitrators will attempt to first resolve all disputes by desk arbitration, which means the arbitrator will decide the case based only on the parties' written submissions, without holding any hearings. However, if the arbitrator determines further development of the record is necessary, he or she may hold a hearing to gather oral testimony.10 All arbitration fees will have to be paid by the employer, and failure to pay such fees will result in waiver of all defenses.11

Payroll Deduction to Finance the Paid Leave

Paid family leave benefits under the PFLBL will be financed by deductions from employee pay and will provide paid benefits for a leave period not covered by workers'...