Effective January 1, 2018, employees of construction employers (supplies, architects, contractors, and others) working in New York State may be eligible for paid family leave. The NY Paid Family Leave Law (“PFLL”) is both broader than and more narrow than the federal Family and Medical Leave Act. The PFLL applies to all employees employed by private employers in the construction industry and working in New York State, even if those employers are located outside the State of New York or the employee is working from home (for example, sales employees, estimators, etc.).
Employees working in New York State become eligible for Paid Family Leave (“PFL”) on January 1, 2018 or after the employee (a) works for 26 consecutive weeks (if the employee is regularly scheduled to work 20 hours or more per week) or (b) after 175 days of employment (if the employee is regularly scheduled to work fewer than 20 hours per week).
PFL benefits are intended to be funded through employee payroll contributions and employees receive benefits through New York’s disability benefits law. (Covered employers must offer an optional waiver for employees who do not qualify for PFLL based on the number of hours worked. If an employee fails to waive benefits, the employer must treat the employee as if she or he were eligible.)
The benefits available under the PFLL phase in over four years. For 2018, once an employee becomes eligible, she or he is entitled for up to 8 weeks of PFL. For 2018, employees shall be entitled to receive 50% of the employee’s average weekly wage or $652.96, which is less.
Eligible employees may take leave (a) for the birth of a child; (b) for the adoption of a child by or foster care placement of a child with the employee; (c) to care for a family member with a serious health condition; or (d) to assist with family obligations when a family-member is called into active military service. The PFLL defines “family member” as child, parent (including parent-in-law, step-parent, legal guardian, or any other person acting or who acted in loco parentis when the employee was a child), grandparent, grandchild, spouse or domestic partner.
With respect to the birth of a child, PFL may only be taken after the child is born and within the first 12 months following birth. With respect to the adoption or foster placement of a child, leave may be taken prior to the adoption or foster placement if an absence from work is required for the adoption or foster placement to proceed, including travel to a foreign country. For 2018, employees are eligible for leave if the birth, adoption or foster placement occurred in 2017.
Significantly, unlike FMLA leave, PFL is not available for the employee’s own serious health condition or an employee’s own qualifying military event.
In anticipation of the January 1 effective date, employers in the construction industry with employees working in New York State should take the following steps:
- Confirm that the covered employer’s disability policy provides coverage for PFL (or that a timely self-insurance election was made);
- Post Notices to employees and applicants;
- Update employee handbooks or otherwise provide written guidance, including a description of employee rights and obligations, including information on how to file a claim for paid leave;
- Provide employees who will not qualify for Paid Family Leave with the Optional Waiver; and
- Train HR staff on compliance with the PFLL.
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