Volume 40 | Issue 150
The New York Paid Family Leave Law goes into effect on January 1, 2018. The state Workers’ Compensation Board has released forms that are essential to implementing the new law, including employee leave request and certification forms, a waiver for employees to opt out of benefits and avoid contributions, and forms for employers to voluntarily provide coverage. Employers should familiarize themselves with these forms, and factor them into existing leave policies and procedures to ensure compliance.
New York’s Paid Family Leave Law (PFL) will go into effect January 1, 2018. When fully phased in, the program will provide eligible employees up to 12 weeks of PFL benefits in a 52-week period to: care for a family member with a serious health condition; bond with a newborn, newly adopted, or fostered child; or deal with a family member’s military exigency arising out of active duty. Benefits will be employee funded and administered through the state’s temporary disability insurance program. (See our April 26, 2016 For Your Information.)
Last summer, the New York State Department of Financial Services set the PFL benefit premium rate and the maximum employee contribution for 2018, and the New York Workers’ Compensation Board (board) issued final regulations implementing the new benefit. (See our June 19, 2017 and July 28, 2017 For Your Information publications.)
Paid Family Leave Forms
The board has released the following PFL forms for use by employers and employees, as appropriate:
- PFL-1 to request PFL benefits for any reason
- PFL-2 to request leave to bond with a newborn, newly adopted or fostered child
- PFL-3 (Release of Personal Health Information) and PFL-4 (Health Care Provider Certification) to request leave to care for a family member’s serious health condition
- PFL-5 to request leave for a military qualifying event
- Waiver to opt out of PFL benefits
- PFL-135 – Employer’s Application for Voluntary Coverage (without employee contribution)
- PFL-136 – Employer’s Application for Voluntary Coverage (with employee contribution)
- DBL-150 – Application to Self-Insure
The PFL-1 form must be completed to apply for PFL benefits, and filed along with form(s) PFL-2 through PFL-5, depending on the type of leave requested. Instructions included with those forms provide further detail on how to file a claim, including what information from the employer and/or employee, additional forms, and proof may be required.
What Employers Must Do
Most employers with at least one employee will have to make PFL coverage available to employees beginning on January 1, 2018.
To comply with the new requirement, employers will generally add PFL insurance to the disability insurance policy they already carry. Only employers that currently self-insure for statutory disability coverage may apply to self-insure for PFL. Although the September 30 deadline to apply has passed, employers that want to pursue a self-insurance option should still submit the DBL-150 form in case the state allows some leeway. Alternatively, they may purchase a separate PFL policy.
While the onus is largely on the employee to complete the necessary forms to request PFL benefits, employers still have a part to play. Employers must complete Part B of the PFL-1, including the employer’s and PFL insurance carrier’s contact information, the employee’s average gross weekly wage, and any leave taken by the employee for New York State Disability and/or PFL during the preceding 52 weeks. Employers must also indicate whether: they will seek reimbursement from the carrier; the employee has taken leave in the past year for statutory disability or PFL (including the dates of any such leave); and the employee’s leave will run concurrently with FMLA.
Employees who work 20 or more hours per week may opt out of PFL if they will not work for 26 consecutive weeks. Employees who work less than 20 hours per week may opt out if they will not work at least 175 days in a 52 consecutive week period (one year). Employers should identify those employees eligible to opt out, and inform them that they can choose to waive coverage for PFL benefits and avoid regular contributions.
To opt out, employees must complete a waiver form, and employers must retain copies of the completed forms. Employees who choose not to waive will be required to make regular PFL contributions, even if not yet benefits eligible. A waiver on file may be voluntarily revoked by the employee or it may be deemed revoked by a change in work schedule. In either circumstance, the employee will have to begin making PFL contributions, including any retroactive amounts due for the period of time he or she was covered by a waiver.
Collect Employee Contributions
To ensure PFL coverage through an insurer or self-insurance, the board’s final regulations permitted employers to begin collecting the cost of PFL through wage deductions on July 1. Employers that have not already done so will want to update existing payroll withholding, or work with their payroll vendors as appropriate to ensure collection of employee contributions to fund the new PFL benefit.
Like New York’s requirements for Worker’s Compensation and Disability Insurance coverage, employers will have to post and maintain a workplace notice in a conspicuous place. For employers that provide coverage through an insurance carrier, the insurer will provide a Notice of Compliance stating they have PFL insurance. Self-insured employers will be able to secure the required notice by contacting the Workers’ Compensation Board at Certificates@wcb.ny.gov.
In addition to ensuring PFL coverage through an insurer or by self-insuring, employers must have a written policy that informs employees about PFL, revise existing leave policies to reflect the new benefit, and update their employee handbooks to include PFL. Employers that do not have an employee handbook will have to provide written guidance to employees on their rights and obligations under the PFL law, including information on how to request leave.
Employers should familiarize themselves with essential forms implementing New York’s Paid Family Leave Law that goes into effect on January 1, 2018, and revise existing leave policies and payroll processes to ensure compliance.