We’ve previously written about the NYPFL here, but this post focuses on how employers should prepare now that the NYPFL has taken effect, and how employers should prepare when an employee decides to take paid leave.
What Employers Should Do Now:
Right away, if employers have not already done so, employers should contact their disability insurance carrier about obtaining Paid Family Leave (“PFL”) coverage. Generally. PFL coverage will be added to the disability insurance policy that employers already carry, but if the employer is self-insured for disability, then the employer may purchase a separate policy or apply to self-insure. Employers may deduct the premium for the PFL insurance policy from employees through a payroll deduction, or they may choose to cover the cost themselves. If an employer wishes to offer more generous paid leave benefits in lieu of those required by law, they must submit their plan to the NYS Workers’ Compensation Board for approval. Such employer should seek reimbursement from their insurance carriers, similar to the process employers follow if they have their own, more generous workers’ compensation benefits. To do so, employers should purchase the statutory PFL coverage as a rider on their disability policy and supplement the pay that they receive from their insurance carrier. Alternatively, employers could apply to self-insure and prove to the NYS Worker’s Compensation Board that their plan covers at least what the NYPFL requires. It is important to note that employers also need to do this for disability coverage—employers cannot apply only to self-insure for paid family leave. To self-insure, employers need to notify the Self-Insurance Office of the Workers’ Compensation Board and pay a security deposit.
Second, if employers obtain Paid Family Leave insurance (as opposed to self-insuring), the insurance carrier will provide a Notice of Compliance and this should be posted in a conspicuous setting by January 1st (just like what is required under Workers’ Comp and Disability Insurance coverage). Simultaneously, all employee handbooks and written materials should be updated to include the Paid Family Leave information. Although most employees will be covered by the law, those that are exempt due to the limited amount of time that they have worked with the employer should be provided with information letting them know that they may waive coverage by completing a waiver form.
What to do when an Employee Takes Paid Family Leave:
When employees decide to take PFL, they must alert their employer with 30 days’ notice, or, if it is not possible, they must alert the employer as soon as they know. Participating employees should alert their employers by submitting a completed claim package to the employer’s insurance carrier, who must process the claim and issue a determination within 18 days. Employers may provide the corresponding claim form, but employees may also obtain this form and other information that they need to provide to the insurer from the NYPFL website or from the insurance carrier directly. Simultaneously, the employer must tell the insurance provider what dates the employee intends to use Paid Family Leave.
Employees cannot combine PFL with workers’ compensation benefits, and, to the extent that an employee is eligible for both PFL and FMLA, they must be taken concurrently.
Additional Employee Protections:
The NYPFL has a similar retaliation policy to the FMLA. While an employer may hire temporary workers during the time an employee takes PFL, employers cannot penalize an employee for taking this time or restrict an employee’s ability to return to the same or similar position with comparable pay, benefits, and other terms and conditions of employment. Additionally, while taking PFL, an employer must maintain an eligible employee’s existing health insurance benefits as if the employee was still working.