August 24, 2017
On July 19, 2017, the New York State Workers’ Compensation Board (WCB) published its final regulations implementing the New York Paid Family Leave Law (PFL). For those that may be less familiar with the particulars of this new law, beginning on January 1, 2018, virtually every private employer in New York State will be obligated to provide eligible employees with paid leave for certain qualifying family circumstances:
(1) for the birth, adoption, or placement of a new child;
(2) to care for a family member with a serious health condition; or
(3) for a qualifying exigency arising from a family member’s military service.
PFL will be phased-in over the next four years and can be funded through employee payroll deductions. In 2018, for example, eligible employees will be entitled to take up to 8 weeks of paid leave for a qualifying reason. Significantly, and unlike federal Family and Medical Leave and state disability benefits, PFL is not intended to cover an employee’s own serious health condition. Instead, PFL is intended to complement New York’s existing state disability insurance program. Some additional PFL fundamentals can be found on Bond’s Labor & Employment Law Blog – “New York Labor and Employment Law Report” at https://www.bsk.com/new-york-labor-and-employment-law-report.
Our focus today is on several frequently asked questions regarding PFL that we have received from our higher education clients.
Question: Are private colleges and universities covered by PFL?
Answer: Yes. Private colleges and universities are deemed to be covered employers under PFL. However, as not-for-profit organizations, they may have some employees who are not covered by PFL. Specifically, employees engaged in a “professional” or teaching capacity for nonprofit educational institutions are excluded from the definition of “employee” under the law. Institutions can extend coverage to these exempt classes of individuals if they choose to do so, but this is not required.
Question: Are public institutions covered by PFL?
Answer: No, to the extent that such institutions fall within the definition of a “public employer”, which includes the state, a political subdivision of the state, a public authority, or any other governmental agency or instrumentality.
Question: Can public institutions voluntarily choose to provide benefits under the PFL law?
Answer: Yes. Public employers are permitted to opt-in to PFL. The process for opting-in is slightly different for unionized and non-unionized employers. If a public employer chooses to cover its non-unionized workers, it must provide 90 days’ advance notice of its decision to opt-in to not only the WCB, but to all employees who will be required to make PFL contributions. In order for a public employer to cover/opt-in its unionized employees, the public employer must engage in collective bargaining and reach consensus / agreement with the applicable union. Once an agreement is reached, the employer must notify the WCB that an agreement has been reached and provide certain information to the WCB.
Question: Are higher education institutions who currently provide voluntary state disability insurance coverage (DBL) to their employees also required to provide PFL?
Answer: No. However, if these institutions currently provide voluntary DBL coverage to their employees, they must notify both the employees and the WCB whether they will also provide voluntarily PFL coverage. Notification must be made by no later than December 1, 2017.
Question: Are student employees entitled to PFL?
Answer: Yes, provided they satisfy the requisite eligibility criteria. Student employees are treated in the same manner as any other employee. If the student employee is regularly scheduled to work at least 20 hours per week, he/she is eligible to take PFL after he/she has been employed for 26 weeks. If the student employee is regularly scheduled to work less than 20 hours per week, he/she is eligible to take PFL after working 175 days.
For more information and continued updates on PFL, please visit the New York Labor and Employment Law Report at https://www.bsk.com/new-york-labor-and-employment-law-report.
If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.