On Tuesday, September 26th, we hosted a New York Paid Family leave Webinar with guest speaker Abigail O’Connell, Compliance Manager for Lincoln Financial Group. Here is the list of questions asked during Q&A.

General Questions:
Is PFL job protected?
Answer: Yes, NY Paid Family Leave is job protected time

Other than employees who won’t be eligible for PFL due to working 26 weeks / 175 days, can employees opt out of contributing to PFL?
Answer: No, other than those who do not expect to work for 26 consecutive weeks or 175 days (for those working less than 20 hours per week), employees who work for a covered employer cannot opt out. Some employers may choose to pay PFL contributions on behalf of their covered employees.

You mentioned additional costs associated with PFL – do you have insights into what those will be?
Answer: Associated costs may include the cost to administer this program which will likely include updating deductions with the payroll vendor, training staff on this law, and replacement labor for those who are taking leave.

Eligibility Questions:
Does the eligibility waiting period need to be met AS of the time of the event?
Answer: The eligibility waiting period needs to be met as of the time of the leave, not the time of the event. For example, a birth in 2017 could occur before an employee has worked 26 consecutive weeks, and that employee may decide to take leave in 2018 once they have met the 26 consecutive week’s requirement.

Are employees on a temporary visa responsible for these benefit deductions?
Answer: There is no exception for those employees working in NY who are on a temporary visa.

Do parent-in-laws apply to domestic partners?
Answer: No, a domestic partner’s parent is not considered a parent-in-law per guidance given by the WCB PFL hotline.

Does the 26 consecutive week eligibility start in 2017 for benefits in Jan 2018?
Answer: The eligibility waiting period of 26 consecutive weeks runs from the start date of employment, even if that date occurred before 1/1/18.

Will this only apply to employees who work in NY if you are a national company?
Answer: Yes, this only applies to persons working in NY.

What about grandparents in law?
Answer: Grandparents-in-law are not covered family members and PFL cannot be taken to care for them.

To clarify, if we have an employee that works remote from New Jersey, but reports into our New York office – do they qualify for NY PFL? Does it matter how frequently they come into the office?
Answer: An employee’s primary work location, as documented by the employer, will determine if an employee is subject to PFL. In this example, if the employee is formally recognized as a New York worker (i.e. within the employer’s payroll system, for tax purposes, etc.) the employee would be subject to PFL. There is no guidance on frequency of work, but the law intends to cover NY employees.

Premium Questions:
Are these deductions in addition to the SDI deductions we already take from NY employees?
Answer: Yes, they are in addition to SDI deductions.

How does this apply to the employee that has more than one employer? That is, will both employers withhold?
Answer: Presumably both employers will withhold premiums and the employee would be entitled to take PFL at either employer or both if they qualified.

So they employees have to pay into PFL and they can take PTO?
Answer: Yes, employees have to pay into PFL or the employer pays on their behalf. At the employer’s option, the employee may be given the choice to take PTO during the PFL to receive a larger amount of money.

PFL Coordination with STD/DBL/FMLA Questions:
Can PFL and FMLA run concurrently?
Answer: Yes, PFL and FMLA can run concurrently if both laws apply.

Do FMLA and DBL run together?
Answer: FMLA and DBL can run concurrently when both apply. One example of this would be for an employee who qualifies for both benefits and has a baby. She might opt to take bonding under both FMLA and DBL for her childbirth recovery at the same time.

Do FMLA and PFL have to be taken concurrently?
Answer: They should run concurrently when both apply.

Can employees take PFL in conjunction with FMLA to get 20 weeks of continuous job protected leave? If yes, is there a specific order in which employees should take DBL, PFL, FMLA or is it up to them?
Answer: It is possible, but unlikely, that someone can stack DBL, PFL, and FMLA but they would need to qualify for all leaves without any running concurrently.

  • If someone hadn’t yet acquired the tenure to take FMLA, but took DBL, then the DBL and FMLA would not run concurrently and the FMLA could be taken later for the employee’s own serious health condition when they met the FMLA eligibility requirements (12 months worked, 1,250 hours, and at a location with 50 employees within 75 miles).
  • Someone could take PFL to care for a grandparent, DP, grandchild or parent in law and that time would not run concurrently with FMLA, then the person could take FMLA protected time (if they were eligible) to care for a spouse, child, or parent with a serious health condition.

Can an employee take PFL and short-term disability ($170 per week) concurrently? Clarification will be answered based on whether PFL & DBL can run concurrently as well as PFL running alongside a core STD plan.
Answer: Yes, someone can take PFL and STD concurrently, but never PFL and DBL concurrently. If the employer has a private short term disability plan separate from the state disability insurance plan (DBL) then STD can run concurrently with either PFL or STD. In this situation, many insurance contracts for STD would offset by the amount paid under PFL or DBL. PFL and DBL cannot run concurrently.

If both FMLA and PFL are both job protected why do EE have to take both concurrently or do they not have to?
Answer: If the leave qualifies for both FMLA and PFL, both should run concurrently. Yes both would be job protected, but also both sets of notice requirements would need to be met. There are risks to employers in not qualifying time appropriately if the absence qualifies under both laws. Top of mind would be the allegation that the employer has interfered with the employee’s FMLA rights if the FMLA wasn’t granted. Although both are job protected, there can be some dispute during the life of the absence that results in liability if the absence is not handled properly under each law.

PFL Coordination with Company Leave Questions:
We offer paid leave for primary parents (generally mothers) for 16 weeks. How would this work with our leave? Would they get an additional 8 weeks, or could it work in conjunction with our leave? We offer 4 weeks of paid leave for secondary parents. Do we have to extend this to 8 weeks paid?
Answer: The benefits would work in conjunction and you would seek reimbursement from your carrier. For secondary parents, you could seek reimbursement for the first 4 weeks and then have the employee collect PFL for the remaining four.

If we have a corporate policy where we provide 6 weeks of fully paid leave for parental leave and then another 6 weeks at a partial percentage- how would this affect administering NY PFL? What should we be aware of?
Answer: As an employer, you would look to seek reimbursement from your carrier for the period of full pay. Depending on the partial percentage period, you may be able to seek reimbursement if you are paying the employee more than they would receive under PFL.

How would an already existing paid maternity/ paternity leave policy work in coordination with baby bonding PFL?
Answer: The employer would likely seek reimbursement for the PFL from the carrier.

If an employee becomes eligible (26 weeks) in the middle of bonding leave fully funded by employer can we file a reimbursement claim after FMLA has already started?
Answer: Yes, you can submit for reimbursement for the portion that would be payable under PFL or DBL. However, reimbursement is only available if the claim for reimbursement is made before the PFL benefit is paid, so as an employer you would want to file in advance of the eligibility period being met, so that the carrier would understand which portion of the claim to reimburse. As this relates to FMLA, in most cases an employee would not qualify for FMLA before qualifying for PFL since the eligibility waiting period is longer for FMLA than PFL. In the rare case an employee qualifies for FMLA first and PFL at a later point, once the employee qualifies for PFL the employer would be eligible to request reimbursement for the PFL claim moving forward.

If company pays 16 weeks of paid leave can the company request reimbursement?
Answer: Yes, the company can see reimbursement for the time that would apply to DBL and PFL during this period.

We have an unlimited PTO policy. If the employee chooses PTO can we still ask to be reimbursed by the carriers?
Answer: If the day would qualify for PFL, then you can seek reimbursement from the carrier and it will require a certification of the time.

PFL Benefit Questions:
Are the weeks based on 5 business days or 7 calendar days?
Answer: Practices may vary in the industry; however, Lincoln intends to use an employee’s average # of days worked per week to determine benefit proration for intermittent leave. Therefore if an employee works an average of 5 days per week, the employee’s average weekly salary would be divided by 5 to determine the employee’s average daily wage. If an employee works an average of 3 days per week that figure would be used to determine the employee’s average daily wage.

Can an employee use PTO to supplement the PFL?
Answer: Yes, an employee can choose to take PTO and get paid 100% of their income. If they choose this option, they are not entitled to PFL benefits in addition to their PTO. The employer can apply to receive PFL for the employee from the carrier in this situation.

Can an employer say no to a PFL request? For example, if a new parent wants to use 4 weeks for bonding with their 6 month old, can the employer state that the time does not work and to take the time at a later time?
Answer: There does not appear to be a path to saying no due to any inconvenience of the employer.

Can employers require employees to take PFL at a certain time? For example) the employee must take PFL immediately following DBL and concurrently with FMLA.
Answer: No, the employer cannot restrain the use of PFL for bonding other than it being required to be taken within one year of the birth. For FMLA, that will run concurrently with DBL and PFL if the employee qualifies for both.

Employee has an event in 2017. At the time of the event, the employee has not yet met eligibility requirements (i.e. hasn’t yet been employed for 26 weeks).  Come January 1st, when the employee can actually take the benefit, let’s say the employee has now worked for 26 weeks.  CAN THE EMPLOYEE TAKE PFL BENEFIT?
Answer: Yes, the employee can take time when they are eligible. They would be subject to the certification requirements too. For example, a birth in 2017 will permit bonding to be taken within a year from the birth, so this might occur in 2018 when the employee has met their eligibility requirements. If there was a surgery for a family member in 2017 then the need to care for that person may have dissipated by the time the employee is eligible for PFL. Under PFL, leave may only be taken to care for a seriously ill family member if the family member’s provider certifies the leave.

If the company has a phase back plan for example paid 3 days a week for the first month and paid 4 days a week for the second month are you eligible for PFL for the other non-paid days?
Answer: Without being familiar with a phase back plan, I look to Article 9. “A day of disability” means any day on which the employee was prevented from performing work because of disability, including any day which the employee uses for family leave, and for which the employee has not received his or her regular remuneration. I don’t see a path to getting paid PFL on a day you would not otherwise perform work for money.

In reference to maternity, this is both for maternal and paternal parents?
Answer: Either the father or mother can take time to bond.

What if they were not employed with us at the time of the child’s birth? Do they qualify for bonding benefits?
Answer: Yes, they could qualify for bonding benefits. They can take them within a year of the birth. If they were not employed with you at the time of the birth, they would need to meet the 26 weeks or 175 days eligibility waiting period and then could take time for bonding.

Employer Responsibility Questions:
If we only have employees working from home, how does the required postings work?
Answer: Recommendation to send them to the employees via mail or email and include required postings in on-boarding materials.

What are the posting requirements for employers who only have remote workers in NY? We do not have an office there.
Answer Recommendation to send them to employees via mail or email and include required postings in on-boarding materials.

Please note, the information provided may include outdated information.