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By Jennifer S. Echevarria
In New York State we have three changes to prepare for in 2018 that both employees and employers should be aware of: 1) minimum wage increases starting December 31, 2017; 2) paid family leave going into effect on January 1, 2018; and 3) an anti-bullying in the workplace law currently being considered for passage in 2018.
We are going to discuss Paid Family Leave.
Paid Family Leave
On January 1, 2018, the NYS Paid Family Leave Act (“the Act”) takes effect. This Act requires private employers to obtain a Paid Family Leave (“PFL”) insurance policy and offer its employees PFL benefits. The Act makes PFL voluntary for public employers.
PFL provides wage replacement to employees who take time off to bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is called to active military service.
Employees’ own disabilities will continue to be covered by general NYS disability insurance policies and the federal Family Medical Leave Act (“FMLA”).
PFL is fully funded by employee payroll deductions. Deductions are 0.126% of the employee’s weekly wage, capped at the NYS Average Weekly Wage (“AWW”) which in 2017 was $1,305.92.
That means that the maximum that can be deducted from an employee’s wages to fund PFL premiums is $1.65 per week. Note that the AWW is recalculated by the NYS Department of Labor on March 1st of every year.
Public employers that can elect whether or not to offer PFL must bargain with their employees’ collective bargaining unit before electing to offer PFL and deducting from employees’ wages.
If the employees are not unionized, the public employer must obtain approval of the PFL plan from 50 percent or more of the employees and provide 90 days notice to employees before deducting from their wages.
In either case, the public employer must obtain approval of its PFL plan from the Worker’s Compensation Board Chair before offering the benefit and deducting premiums from employees’ wages.
To be eligible for PFL, an employee must work 20 or more hours a week for 26 weeks or, if the employee works less than 20 hours a week, then the employee must work 175 days to be eligible.
Temporary or seasonal employees that do not anticipate working long enough to qualify for PFL can sign a PFL waiver to avoid deductions from their wages.
However, if the employee’s schedule changes and he/she ends up working enough to qualify for PFL, then the waiver will automatically be deemed revoked and the employee will start getting the premiums deducted from his/her wages, including all deductions that should have been paid from the date of hire.
In 2018, PFL benefits will allow an employee to take 8 weeks off while earning 50 percent of his/her AWW, capped at 50 percent of the state’s AWW. Employers may permit, but cannot require, employees to use their sick or vacation time concurrently with their PFL time. An employee is eligible to take the maximum benefit every 52 weeks, which 52 week clock is reset on the first day that PFL is taken.
Jennifer Echevarria concentrates in employment and immigration areas of law and also a Spanish-speaking attorney for the firm of Jacobowitz & Gubits.