During the July 13th & 27th NYS Paid Family Leave seminars, we received numerous questions that needed further clarification. Below are the questions and answers received from either the carriers or our ERISA attorney.
1. Can a 66-year-old employee (actively at work) who is collecting SSI take PFL?
- The employee should file to be exempt (waiver form) as they cannot collect on both
2. What is the employee doesn’t sign the waive, but doesn’t qualify (they will never meet the requirements)?
- NYS changed the wording around the waiver to say employee’s “shall” have the right to waive. There are likely different outcomes if the employee chooses not to waive (the employer will take the deduction) vs if the employer fails to provide the form (we suspect the employee has a right to a refund of premiums). Here are the regulation provisions around the waiver.
An employee of a covered employer shall be provided the option to file a waiver of family leave benefits:
When his or her regular employment schedule is 20 hours or more per week but the employee will not work 26 consecutive weeks; or
When his or her regular employment schedule is less than 20 hours per week and the employee will not work 175 days in a 52-consecutive week period.
Within eight weeks of any change in the regular work schedule of an employee that requires the employee to continue working for 26 consecutive weeks or 175 days in a 52-consecutive week period, any waiver filed under this section shall be deemed revoked. An employee of a covered employer whose waiver has been revoked shall be obligated to begin making contributions to the cost of family leave benefits, including any retroactive amounts due from date of hire, pursuant to section 209 of the Workers’ Compensation Law, as soon as the employee is notified by the covered employer of such obligation.
The covered employer shall keep a copy of the fully executed waiver on file to be produced at the request of the Chair, for as long as the employee remains in employment with the covered employer.
An employee as described in subsection (a) of this section who elects not to enter into a waiver shall make regular family leave benefit contributions for the full duration of his or her employment with the covered employer, and the covered employer shall be obligated to provide family leave benefits for such employee when he or she is eligible pursuant to this Title.
3. We have an employee that works between 16-24 hours per week; however, they can fluctuate and sometimes come closer to 30 or 35 hours. How should we classify that person?
There is no distinction between FT or PT as it relates to eligibility. The regulation defines eligibility as an employee who works over 20 hours per week must work for that employer 26 consecutive weeks prior to taking leave, or if they work less than 20 hours per week 175 workdays prior to taking leave.
It seems best you can do is look at what employee is “regularly scheduled” to work and treat them based on whether they are regularly scheduled at/above 20 hours/week or below 20 hours/week.
4. If an employee is away on active duty in the military, should the PFL time be accruing during their leave?
- Only paid time off counts towards accumulation. If its an unpaid leave, the there is not eligibility for accrual. See the notes from the regulations below.
A comment from an employer organization asked that section 380-2.5(c) (now 380- 2.5(d)) be amended so that periods of vacation and paid time off do not count toward employees’ 26 weeks of continuous employment required for family leave eligibility. A comment asked for clarification on whether unpaid absences count toward eligibility. Time during which an employees’ pay is subject to the withholding of their family leave coverage contribution will count toward their eligibility, whether the time was time worked or paid time off taken under the employers’ policies. An unpaid leave of absence does not count toward an employee’s eligibility under section 380-2.5(d), this is also in accord with how periods of temporary disability leave do not count toward eligibility under section 380-2.5(e). Accordingly, no changes to the regulations have been made.
5. If a full-time employee is laid off for a week due to seasonal work, is the time off part of the 26-week accrual towards eligibility?
- The Board received a comment asking for section 380-2.5 to clarify whether an employee that acquires eligibility and is seasonally laid off has to fulfill an eligibility period again when they are rehired. Section 203 of the WCL states an employee who completes 26 consecutive weeks of employment can take an unpaid leave of absence with the employer’s agreement and immediately become eligible for leave upon their return. Accordingly, no change to the regulations has been made.
6. If the employee is out on disability or Workers Comp, does this count as time worked?
In order to determine eligibility for family leave under this section, periods of temporary disability taken pursuant to Article 9 of the Workers’ Compensation Law shall not be counted as weeks of employment or days worked for determining eligibility for paid family leave.
7. What if an employee works less than 20 hours per week; however is normally scheduled for more during different times of the year?
- You need to use “regular employment schedule” to determine whether eligibility is based in the 175-day standard (for employees who are regularly employed for under 20 hours) or the 26-week standard (for employees regularly employed 20 or more hours).
An employee of a covered employer whose regular employment schedule is 20 or more hours per week will become eligible to take family leave during his or her employment with such employer, provided the employee has been either:
- In employment, as defined in this Title, of the covered employer for at least 26 consecutive work weeks preceding the first full day family leave begins; or
- In employment, as defined in this Title, of the covered employer during the work period usual to and available during the entirety of such 26 consecutive weeks preceding the first full day the leave begins in any trade or business in which he or she is regularly employed and in which hiring from day to day of such employees is the usual employment practice; or
- In employment, as defined in this Title, of the covered employer for at least 26 consecutive weeks, such consecutive weeks may be tolled during periods of absence that are due to the nature of that employment, such as semester breaks, and when employment is not terminated during those periods of absence.
An employee of a covered employer whose regular employment schedule is less than 20 hours per week will become eligible to take family leave from such employment after working 175 days in such employment preceding the first full day the leave begins.
8. Does over time count towards PFL is the employee wants to take PFL in hourly increments?
- When any employee takes family leave in daily increments, the employee’s maximum period of paid family leave is calculated based on the average number of days worked per week with a maximum of 60 days per year for employees working at least five days per week. Thus, for example, an employee that works three days per week, will receive:
- On January 1, 2018, the equivalent of three days per week for eight weeks, or a maximum of 24 days in any 52-consecutive week period.
- On January 1, 2019, the equivalent of three days per week for ten weeks, or a maximum of 30 days in any 52-consecutive week period.
- On January 1, 2021, the equivalent of three days per week for twelve weeks, or a maximum of 36 days in any 52-consecutive week period.
9. Does proof have to be provided to support the employee is using PFL for the reason indicated?
- Employee must provide a certification form or supporting document when requesting leave. The Board received a comment opining that the PFL system is untenable because there could be a disconnect between the carrier’s determination and the employer’s determination about whether or not leave should be denied. Because the employer does not decide whether to approve or deny a paid family leave claim, and if the employer suspects fraud it is free to contact the carrier, no change to the regulations has been made.
- In the past, carriers have never not communicated with an employer on the basis of a disability/Comp claim and we anticipate there will be a communication policy established as we get closer to implementation.
10 . Does the employer make the decision as to when to take PFL or PTO?
- No, if the employer allows employees to substitute PTO they must give the employee the option to use PTO or PFL. They cannot require the employee use PTO instead of PFL.
- If the employee doesn’t mail the application and supporting documents in to the carrier, can the employer do it?
- The regulations are specific and clear to state it should be the “employee” doing the submission.
An employee must submit a completed request for paid family leave to the carrier. No benefits shall be required to be paid by the carrier until the completed request for paid family leave, together with any necessary certifications or proof of claim documentation, has been submitted to the carrier.
- Are employees eligible to take PFL for a sick family member who is out of state?
- The regulations state something about a specific area with no further guidance
For the purpose of this Part, the employee must be in close and continuing proximity to the care recipient. This means present at the same location as the family member during the majority of the employment period from which leave has been taken. Travel necessitated for the purpose of securing medication or to arrange care for the family member, or other such deviations determined to be reasonably related to providing care, shall satisfy this definition.
For the purpose of this section, “providing care” may include necessary physical care, emotional support, visitation, assistance in treatment, transportation, arranging for a change in care, assistance with essential daily living matters and personal attendant services.
- Are employees who work out of state for a company that is sitused in NYS eligible?
- An employer with employees working in New York for 30 or more days in a calendar year must obtain Paid Family Leave coverage. Family Leave is a benefit for people who work in New York; it does not matter where the employer is headquartered or where the employee lives. For example: An employee who works from their home in New York is covered even if the employer is located outside of New York State. An employee that is required to travel occasionally into New York State to perform duties, such as a salesperson, will not be considered a New York State employee unless the employment is based in the state. An employer that is located outside of New York State does not need to cover employees who live in New York but work outside of New York.
- Will the employer when the carrier approves or denies PFL claims?
- Not under regulations. Employer could learn basis for approval/denial If carrier shares that information, but that would be based on carrier procedures. (see answer to #9)