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Paid Family Leave Overview?The New York State Paid Family Leave Benefits Law (PFL) provides partial wage replacement and job protection to virtually all full-time and part-time employees?who work in NY for a covered employer and need time away from their jobs to: bond with a newly born, adopted, or fostered child; provide care for a family member with a serious health condition; or assist with obligations due to a qualifying exigency arising from the service of a family member in the US Armed Forces.DeductionsThe premium for PFL coverage is fully funded by employees through payroll deductions [unless the employer chooses to cover the cost and pay the PFL premium directly from employer funds]. The maximum employee contribution rate is established each year by the New York State Department of Financial Services, as a percentage of an employee’s weekly wages capped at a state-set maximum contribution level.?BenefitsIn 2018, eligible employees can take up to 8 weeks of leave while receiving 50% of their average weekly wage, capped at 50% of the state’s average weekly wage.The benefit is anticipated to increase each year until 2021, when the maximum benefit is expected to be up to 12 weeks of leave paid at 67% of the employee’s average weekly wage, capped at 67% of the state’s average weekly wage. New York State’s average weekly wage is determined annually by the NY State Department of Labor. New York State may delay the phase-in schedule outlined below, at its discretion.YearMax Weeks of LeaveMax % of Employee’s Average Weekly WageUp To Max % of State’s Average Weekly Wage2018850%50%20191055%55%20201060%60%20211267%67%Employees may take the maximum weeks of leave in a consecutive 52-week period. The 52-week period is measured looking backward from the first day of paid leave [If the employer is subject to the FMLA and this is not the same measurement period used for a 12-month period, employees must receive 60 days’ notice if the employer changes the FMLA policy so that the measurement period is in sync with the PFL policy. Additionally, if the employer changes its FMLA measurement period, it must consider an employee’s eligibility under both methods during the transition period, and grant the employee the maximum amount of leave they would be entitled to under either policy]. Employees may take paid leave for multiple Paid Family Leave events in a consecutive 52-week period, as long as the overall leave does not exceed the maximum weeks allowable. If a qualifying event extends beyond 52 consecutive weeks, a new request must be submitted before the next 52-week period begins.Paid Family Leave benefits begin on the first day of the qualified leave event. Employees may take paid leave in weekly increments or intermittently in daily increments.The maximum period of leave for an employee who takes intermittent leave in daily increments is based on the average number of days worked per week during the 8 weeks preceding the first day of leave, with a maximum of 40 days per year in 2018 for employees working five days per week (the maximum days are subject to increase as the benefit level increases each year until 2021).To determine the benefit for an employee who takes leave in weekly increments, the average weekly wage?is computed by totaling the employee’s wages for the 8 weeks prior to the start of Paid Family Leave, and dividing the sum by eight. To determine the benefit for an employee who takes leave in daily increments, the employee’s average weekly wage is divided by the average number of days worked per week over the 8-week period preceding the leave.The benefit amount that is in effect at the time the leave begins applies to the full duration of the paid leave for that event, even if a new calendar year with increased benefit levels falls within that period.An employee cannot receive benefits for both statutory disability (DBL) and PFL at the same time. If the employee qualifies for both, the maximum length for DBL and PFL benefits cannot exceed 26 weeks in any consecutive 52-week period. EligibilityPaid Family Leave is a mandatory benefit for employees who work for a covered employer in New York State. Employees may not opt out, except for temporary or seasonal employees who may qualify for a waiver, as explained below.Employees with a regular work schedule of 20 or more hours per week are eligible for PFL after 26 consecutive weeks of employment. Employees with a regular work schedule of less than 20 hours per week are eligible after 175 days worked. When an employee changes employers, the employee must re-establish eligibility with the new employer.Employees who work for more than one employer may choose to take leave from just one employer, or both. If taking leave from both employers for the same leave event, it must be during the same time period.If an employee and spouse (or family member) have different employers, both are eligible to take Paid Family Leave at the same time. However, if the employee and spouse (or family member) work for the same employer, the employer can deny Paid Family Leave to one employee if they have requested the same period of family leave for the same leave event [the employer needs to specify in the policy whether this is allowable or not].WaiverIf an employee does not expect to work long enough to qualify for Paid Family Leave, the employee may opt out of Paid Family Leave by completing a waiver of benefits form.? An employee will qualify for a waiver if they will not work 20 or more hours per week for 26 consecutive weeks, or less than 20 hours per week for 175 days within a 52-week period. This waiver is optional, and the employer may not require that an employee sign a waiver. Employees who complete a waiver will not contribute to Paid Family Leave through payroll deductions and will not be eligible to take Paid Family Leave.? If the employee’s schedule changes such that the employee is expected to qualify for Paid Family Leave, the waiver is automatically invalid within 8 weeks of the change in schedule, and the employee is responsible for paying any required Paid Family Leave contributions retroactive to the employee’s date of hire (or the inception of the Employer’s PFL payroll deduction; whichever is later) [for administrative convenience, the employer can choose to decline to recoup retroactive deductions, or choose a shorter period rather than back to date of hire]. The waiver will be kept on file for as long as the employee is working for the employer, whether the waiver is still in force or not.Leave for Birth, Adoption or Foster CareAn employee?may take Paid Family Leave during the first 52 weeks following the birth of a child. PFL is not available for prenatal conditions. An employee may take Paid Family Leave prior to the actual placement or adoption of a child if an absence from work is required as part of the process; such as counseling sessions, appearing in court, consulting with attorneys or doctors representing the birth parent, physical examinations, or traveling to another country to complete an adoption. The employee’s entitlement to paid family leave for adoption or foster care expires at the end of the consecutive 52-week period beginning on the earlier of the date of the placement or first day of leave taken.Leave to Provide Care for a Close Relative with a Serious Health ConditionIf an employee’s family member?has a serious health condition, the employee is eligible to care for them under the Paid Family Leave program. An employee may take leave to care for a family member who lives outside of New York State as long as the employee is in close and continuing proximity to the person they are caring for. Family members include the employee’s:SpouseDomestic partnerChild (regardless of age)ParentParent-in-lawGrandparentGrandchildA serious health condition is an illness, injury, impairment, or physical or mental condition that requires (1) inpatient care in a hospital, hospice, or residential medical-care facility or (2) continuing treatment or supervision.Continuing treatment or supervision includes:A period of incapacity of more than 3 consecutive calendar days and (i) treatment 2 or more times by a health care provider or (ii) treatment by a health care provider which results in a regimen of continuing treatment;A period of incapacity or treatment for a chronic serious health condition which requires periodic visits for treatment by a health care provider; A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective; orA period of incapacity because the family member is receiving multiple treatments or recovering from (i) restorative surgery after an accident or injury or (ii) an injury or condition which would result in incapacity of more than 3 consecutive calendar days if left untreated.Cosmetic treatments (such as plastic surgery) are not eligible conditions unless inpatient hospital care is required or complications develop. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition, and would not qualify for Paid Family Leave.Paid Family Leave cannot be used for the employee’s own injury or illness. Leave for a Qualifying Exigency of a Family Member in the US Armed ForcesPaid Family Leave can be taken by employees who are also eligible for time off under the military provisions in the federal Family Medical Leave Act when a spouse, child, domestic partner or parent of the employee is on active military duty or has been notified of an impending call or order to active military service.Employees can take leave to assist with obligations arising out of a call to duty. A qualifying military exigency includes:Deployment with short notice of 7 days or lessFinancial and legal arrangementsCounselingMilitary events and related activitiesChildcare and school activitiesParental careRest and recuperationPost-deployment activitiesAdditional service-related activitiesPaid Family Leave cannot be used for the employee’s own qualifying military event. Health Insurance While on LeaveEmployees with health insurance remain covered during paid leave (including family or dependent coverage) and continue to pay only their normal contributions to the cost of the health insurance premiums at the same level as they did prior to their paid leave. If that amount changes during the time an employee is on paid leave, the employee on leave is required to pay the new amount just like all other employees affected by the change. During paid leave, the employee must pay their portion of the premium which is usually deducted from their paycheck via payroll deduction, directly to the employer. If the employee on leave is more than 30 days late with providing the payment to the employer, the employer may initiate the following steps to stop the employee’s health insurance coverage: Send a written notice to the employee at least 15 days before intending to end coverage and give the employee the option to remit any outstanding balance within 15 days.If the employer still does not receive the payment within the 15-day window, the employer may terminate the employee’s health insurance coverage.If the employer has any other established policies regarding other forms of leave that provide for the employer to cease coverage retroactively to the date the unpaid premium payment was due, the employer may drop the employee retroactively in accordance with that policy, provided the 15-day notice was given. If the employee chooses not to keep health insurance coverage (or stops paying the health insurance premium share and is, therefore, canceled from the health insurance coverage) during Paid Family Leave, the employer must reinstate the employee into the health plan on the same terms as the employee had prior to taking leave, when the employee returns from Paid Family Leave.If the employer provides a new health plan or makes changes to existing benefits while the employee is on paid leave, the employee is entitled to the new or changed plan or benefits as if the employee was not on leave.Interplay with the Family and Medical Leave Act (FMLA) Leaves designated by the employer under the FMLA that also qualify under PFL will run concurrently. The employer will notify the employee that the leave qualifies under both laws, and the time taken will count against the employee’s leave entitlement under both laws, even if the employee fails to file a PFL claim and does not collect PFL benefits. If leave under the FMLA is taken in partial day increments, and the leave would otherwise qualify as PFL, the time will be tracked and counted toward the employee’s PFL entitlement when the time accumulates to a full day.Use of Other Paid Time Off While on LeaveThe employer may permit employees to use otherwise available paid time off (i.e., PTO, vacation or personal leave, NYC Earned Sick Time) in partial day increments to supplement the PFL benefit and achieve full pay, but may not require employees to use this leave [the employer first needs to decide and specify in the policy whether the use of paid time off will be allowed or not; if allowed, the employer may permit employees to supplement the benefit by using paid time off in partial day increments to achieve full pay, as spelled out above; further, if the use of paid time off will be allowed, another option for employers is to permit employees to use paid time off in full day increments to achieve full pay, in which case the employer would request reimbursement from the carrier for the PFL benefit]. An employee is not entitled to continue to accrue paid time off while out on Paid Family Leave, but the law and regulations do not prohibit the employer from allowing the employee to continue accruing leave [at the employer’s discretion, so long as all employees are treated equally].Notice RequirementsAn employee must provide the employer with at least 30 days’ advance notice of the intent to use Paid Family Leave if the qualifying event is foreseeable, such as:expected birth, or placement of a child for adoption or foster care;bonding leave (intermittent or otherwise); planned medical treatment for a serious health condition of a family member; planned medical treatment for a serious injury or illness of a covered service member; or known military exigency. If a 30-day advance notice is not practicable (due to, for example, lack of knowledge, a change in circumstances, a medical emergency, or short-notice deployment), notice must be given as soon as practicable under the facts and circumstances surrounding the qualifying event. When an employee becomes aware of a qualifying event less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. The notice should include enough information to make the employer aware of the qualifying event, including which type of paid leave is requested and the anticipated timing and duration of the leave.If there are any changes to the duration or schedule, the employee must advise the employer as soon as practicable. For intermittent leave, the employer has the right to require employees to provide notice as soon as practicable before each day of leave. Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, PFL may be delayed or denied [the employer can overwrite the 30-day notice requirement only in favor of the employee, by either waiving the notice requirement or choosing to keep the employer’s more lenient requirement in place, if the employer’s usual and customary notice rules are less stringent than New York State’s requirements]. Employees do not need to provide advance notice of leave to the carrier.Claim ProcedureEmployee notifies the employer 30 days prior to leave, when practical. Employee fills out a claim form; available from the employer, the employer’s Paid Family Leave insurance carrier, or on the Paid Family Leave website (paidfamilyleave). Employee obtains supporting documentation for leave (i.e., birth certificate, medical documentation for family member, military deployment certification, etc.). Employee provides the employer with the claim form for completion of Part B. The employer will return the form to the employee within three business days.Employee submits completed claim form and supporting documentation to the insurance carrier within 30 days of his/her first day of paid leave. The insurance carrier must process the claim and issue a determination and/or payment within 18 days of receipt of the completed claim.Denied ClaimsIf a PFL claim is denied by the carrier, the employer may require the employee to use available paid time off to cover the absence. If the employee has no available paid time off, the absence will remain unpaid and may be treated as an unexcused absence [the employer needs to specify in the policy whether use of paid time off will be required for days of leave that are unapproved by the carrier, and whether the absence will be treated as unexcused]. ReinstatementAn employee will be reinstated to the same or comparable position following the completion of an approved paid family leave.Discrimination/RetaliationAn employee will not be discriminated or retaliated against for exercising their PFL rights. Employees who feel they have experienced discrimination or retaliation for exercising their rights should notify the employer. ................
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