Final Regulations Adopted Under New York Paid Family Leave Law

On July 19, 2017, the New York Workers’ Compensation Board (the “Board”) published its final regulations regarding the New York Paid Family Leave Law (“NYPFL Law”). Although the final regulations largely are similar to the proposed regulations issued earlier this year, they contain clarity, summarized below, concerning a number of aspects of the NYPFL Law. The complete final regulations can be found here.

Timing of Qualifying Events

Although the NYPFL Law does not take effect until January 1, 2018, certain qualifying events may take place in 2017 that will trigger employee entitlement to paid family leave (“PFL”) beginning in 2018. For instance, an eligible employee who gives birth to a child on November 1, 2017, may use her full eight weeks of PFL under the PFL Law for child bonding between January 1 and October 31, 2018. Of course, if the employee is eligible for FMLA leave in 2017, that same employee may take FMLA leave related to her pregnancy or child bonding. 

Coverage

The final regulations clarify that an employee who works in another state, and only incidentally works in New York, is not eligible for the benefits and protections of the NYPFL Law. This stands in contrast to the New York City Earned Sick Time Act, pursuant to which individuals who work at least 80 hours in New York City in one year are eligible for protected and, in most cases, paid sick time.

Also, resolving a point of confusion, the Board explained that an employee who works fewer than 20 hours a week will be eligible for the benefits and protections of the NYPFL Law after 175 days worked, rather than 175 days following the first date worked. Relatedly, employers must count days for which employees take paid time off, where deductions are taken from those employees’ pay checks, toward the requisite 175 work days.

Calculating Average Wages

The Board also provided further guidance on the calculation of employees’ average weekly wages, which is relevant for determining employees’ compensation while on PFL. Under the regulations, if an employee’s final week worked is a partial week, his or her average weekly wage should be calculated excluding the final week worked. To permit employers to calculate the employee’s average weekly wage by including a partial week in the formula would have the effect of lowering an employee’s average weekly wage, thereby reducing his or her compensation while on PFL.  

Use of Employees’ Contributions

Employers should note that, under the final regulations, they are permitted to use their employees’ contributions only to pay for a PFL insurance policy or to fund self-insurance. Any surplus amount that an employer withholds that exceeds the actual cost of the insurance policy or self-insurance program must be returned to contributing employees.