Q&A With a Better Balance About the New Paid Family Leave Laws in New York State

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Paid family leave in New York goes into effect on January 1, 2018. And those who have kids in 2017 may take paid family leave in 2018, as long as they take leave within a year of the birth (https://www.ny.gov/programs/new-york-state-paid-family-leave).

 In response to the many questions on various Park Slope Parents listserves, Park Slope parent & ABB Board Member Elizabeth Saylor put together the below question and answer. Molly Weston Williamson, a staff attorney at A Better Balance (http://www.abetterbalance.org/), helped her with this. If you are an employee or independent contractor and have additional questions not answered below, we recommend you call ABB (212-430-5982) or the state’s paid family leave hotline (844-337-6303). Employers, including household employers of nannies or housekeepers, should also call the state hotline for more information.

Elizabeth will also continue to work with PSP and ABB to answer additional questions. Hope this helps. The new law is very exciting but, as with anything new, a bit confusing.

 

Q & A:

 

What does the paid family leave law do?

The law guarantees workers time off to bond with a new child (including adopted and fosterchildren); care for a seriously ill family member (child, parent, parent-in-law, spouse, domestic partner, grandchild, or grandparent); or address certain military family needs.

                          

Am I covered?

If you’re employed outside the government in New York State, either full-time or part-time and have worked for your employer for 6 months, you’re probably covered under the law, regardless of how many people work for your employer. The law applies regardless of citizenship or immigration status. While almost all employees for private (non-government) employers are covered, the law contains some exceptions.  For example, teachers at private schools and certain other employees of religious, charitable, or educational non-profits are not automatically covered.  No government employees are automatically covered, but public sector employers, including the state of New York, can opt in to coverage.  Public sector unions can negotiate to opt in to coverage through the bargaining process. 

 

Are domestic workers covered?

Employers of a domestic worker who works at least 40 hours per week for that employer must provide coverage.  Employers of a domestic worker who works less than 40 hours per week for that employer may provide coverage.  Unfortunately the mailing the state recently sent out is not clear about the rules for domestic workers. While most part-time private employees are covered after they work 175 days, domestic workers are not required to be covered unless they work at least 40 hours per week. Domestic employers can get coverage by buying a disability (TDI)/paid family leave insurance policy, either from a private insurance carrier or from the state insurance fund. Failure to purchase the required insurance may result in serious penalties and is actually a criminal offense, punishable by up to a year’s imprisonment. Domestic workers who lack work authorization and/or work "off the books" are still entitled to paid family leave if they work 40 hours per week.

 

Are freelancers and other independent contractors covered?

In general, the law does not give self-employed people (including freelancers) an automatic right to coverage. However, self-employed workers who wish to do so can choose to voluntarily opt in by purchasing a paid family leave insurance policy (since paid family leave coverage is paid for through designated employee contributions, rather than a payroll tax). There are some specific rules around how that opt in process works and, if you are currently self-employed, there are major advantages to opting in by January 1, 2018.  I would encourage anyone with specific questions about how that works to contact A Better Balance directly at 212-430-5982

 

How much paid family leave can I take?

In 2018, you will be able to take up to eight weeks of family leave. Each year after that, the number of weeks available will be increased up to 12 weeks in 2021.

 

How much of my paycheck can I get while I am on paid family leave?

In 2018, you will receive half (50%) of your average weekly pay, up to about $650 per week.

Each year after that, you’ll be eligible to receive a greater percentage of your pay while on leave.

 

Will my job be protected while I am on leave?

Yes. You have the right to return to work at the same or comparable job, and you cannot be discriminated against for taking leave under the New York paid family leave law. (Other laws may also protect you from discrimination.) You also have the right to keep your healthcare coverage under its current conditions.

 

When can I begin taking paid family leave?

If you’ve worked 20 or more hours per week for your employer for at least six months, you can start receiving benefits on January 1, 2018.  Otherwise, if you work 20 or more hours per week, you may start receiving benefits six months after your start date. Part-time workers who worker less than 20 hours per week may need to work for slightly longer (175 days) to become eligible. 

 

If my child was born/adopted in 2017, may I take NY paid family leave in 2018?  What if I already took leave under the federal Family Medical Leave Act (FMLA)?

A parent who welcomes a new child before January 1, 2018, can take paid family leave to bond with that child after January 1, 2018, so long as the leave is taken with 12 months of the child’s birth or placement.  In general, paid family leave and FMLA must be taken concurrently. However, sometimes they can’t be taken concurrently--for example, for someone who takes FMLA in 2017 and paid family leave in 2018 (since that person could not have taken paid family leave in 2017).  This means that there may be some parents who are able to take FMLA to bond with a new child in 2017 and then take paid family leave to bond with that same child in 2018.

 

May I take paid family leave and collect temporary disability insurance (TDI)?

A parent who gives birth can take both TDI to recover from childbirth and paid family leave for bonding, but may not take both at the same time.  For purposes of temporary disability insurance, most insurance carriers will consider someone disabled for 6 weeks after a vaginal delivery and 8 weeks after a Caesarian section, though those who suffer complications during delivery could be considered disabled for longer if certified by a medical professional.  In a healthy pregnancy, you may also be considered disabled for a few weeks prior to delivery if your health provider deems it necessary for you to not go to work.  This means that, if a worker chose to do so, a worker could receive TDI benefits for 6-8 weeks to recovery from childbirth, followed by paid family leave for up to 8 weeks (in 2018) to bond with the new child.  But because TDI coverage is not identical to paid family leave (lower benefit rate of max $170 per week, no job protection, no continuation of health insurance), electing to receive TDI benefits before receiving paid family leave benefits would involve tradeoffs that might make taking paid family leave benefits right away more appealing to some workers. For more information on TDI, see this A Better Balance fact sheet or contact A Better Balance at 212-430-5982 for more information. 

 

Disclaimer: The above are the general answers to common questions, but there are exceptions. These materials thus do not constitute legal advice. For specific questions, please contact ABB (212-430-5982 or www.abetterbalance.org), the state (844-337-6303 or https://www.ny.gov/programs/new-york-state-paid-family-leave), or an attorney. ABB will be creating updated materials, so join ABB’s mailing list (http://www.abetterbalance.org/mailing-list/) or check back on their site in September.