12 CRR-NY 380-2.5NY-CRR
12 CRR-NY 380-2.5
12 CRR-NY 380-2.5
380-2.5 Employees who acquire eligibility during employment.
(a) An employee of a covered employer whose regular employment schedule is 20 or more hours per week will become eligible to take family leave during his or her employment with such employer, provided the employee has been either:
(1) in employment, as defined in this Title, of the covered employer for at least 26 consecutive work weeks preceding the first full day family leave begins; or
(2) in employment, as defined in this Title, of the covered employer during the work period usual to and available during the entirety of such 26 consecutive weeks preceding the first full day the leave begins in any trade or business in which he or she is regularly employed and in which hiring from day to day of such employees is the usual employment practice; or
(3) in employment, as defined in this Title, of the covered employer for at least 26 consecutive weeks, such consecutive weeks may be tolled during periods of absence that are due to the nature of that employment, such as semester breaks, and when employment is not terminated during those periods of absence.
(b) An employee of a covered employer whose regular employment schedule is less than 20 hours per week will become eligible to take family leave from such employment after working 175 days in such employment preceding the first full day the leave begins.
(c) Maximum family leave for all employees.
(1) Weekly leave. Any employee taking family leave in weekly increments will be eligible for the maximum number of weeks of leave in any 52 consecutive week period. Weekly benefits are payable in accordance with subdivision (2) of section 204 of the Workers’ Compensation Law.
(2) Daily leave. When any employee takes family leave in daily increments, the employee’s maximum period of paid family leave is calculated based on the average number of days worked per week with a maximum of 60 days per year for employees working at least five days per week. Thus, for example, an employee that works three days per week, will receive:
(i) On January 1, 2018, the equivalent of 3 days per week for 8 weeks, or a maximum of 24 days in any 52 consecutive week period.
(ii) On January 1, 2019, the equivalent of 3 days per week for 10 weeks, or a maximum of 30 days in any 52 consecutive week period.
(iii) On January 1, 2021, the equivalent of 3 days per week for 12 weeks, or a maximum of 36 days in any 52 consecutive week period.
(3) Computing the average daily rate for daily leave.
(i) When an employee requests family leave in daily increments (e.g., every Monday for six weeks), rather than as a weekly benefit, the daily benefit shall be calculated based on the employee’s average weekly wage (computed in the same manner as set forth in section 355.9 of this Title) divided by the average number of days the employee worked per week.
(ii) In arriving at the average number of days the employee worked per week for the purpose of determining the employee’s wage for one day, the employer shall average the number of days the employee worked per week over the same eight weeks used in calculating the employee’s average weekly wage under section 355.9(2) of this Title. The average number of days worked may be fractional in order to accurately convert the average weekly wage to an equivalent daily wage.
(d) In order to determine eligibility for family leave under this section, the use of scheduled vacation time; the use of personal, sick or other time away from work that has been approved by the employer; or other periods where the employee is away from work but is still considered to be an employee by the employer, shall be counted as consecutive weeks or consecutive work weeks, or days worked, as long as the contributions to the cost of family leave benefits, pursuant to section 209 of the Workers’ Compensation Law and required by the employer of like employees, have been paid for such periods of time.
(e) In order to determine eligibility for family leave under this section, periods of temporary disability taken pursuant to article 9 of the Workers’ Compensation Law shall not be counted as weeks of employment or days worked for determining eligibility for paid family leave.
(f) An employee who is eligible for both disability benefits and family leave during the same period of 52 consecutive calendar weeks shall not receive more than 26 total weeks of disability and family leave benefits during that period of time. No employee shall receive more than the maximum duration of family leave benefits, pursuant to section 204 of the Workers’ Compensation Law, in any 52 consecutive calendar week period as such is defined in section 355.9 of this Title.
(g)
(1) In the event that a period of family leave benefits received by an eligible employee under this Title is concurrently designated as leave pursuant to 29 U.S. Code Chapter 28 (the Family and Medical Leave Act or FMLA) by an employer subject to FMLA, the employer shall notify the eligible employee of such designation and shall also provide the employee with the notice required under 29 CFR 825.301 and 825.305.
(2) If an employer fails to provide the notice required by this section, the employer will be deemed to have permitted the eligible employee to receive family leave benefits without concurrently using the benefits available under FMLA, as permitted under section 206 of the Workers’ Compensation Law.
(3) If an employer designates a period of family leave to be covered by the FMLA for a reason also covered under section 201(15) of the Workers’ Compensation Law, and if the employer informs the employee of their eligibility for family leave benefits and the employee declines to apply for payment under section 380-5.1 of this Part, the employer and its insurance carrier may count the leave against the employee’s maximum duration of family leave in a 52 week period under section 204(2)(a) of the Workers’ Compensation Law.
(4) FMLA designated leave taken by an employee due to his or her own serious health condition is not family leave under section 201(15) of the Workers’ Compensation Law and does not reduce the amount of paid family leave an employee is eligible for under section 204(2)(a) of the Workers’ Compensation Law.
(5) The employer may elect to track hours taken for FMLA for any day in which the employee is paid, works at least part of the day, and is thus not eligible for paid family leave pursuant to paragraph (d) of subdivision (3) of section 206 of the Workers’ Compensation Law. When the total hours taken for FMLA in less than full day increments reaches the number of hours in an employee’s usual work day, the employer may deduct one day of paid family leave benefits from an employee’s annual available family leave benefit. The employer shall not be entitled to reimbursement from its carrier for such paid FMLA hours.
12 CRR-NY 380-2.5
Current through August 31, 2021
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IMPORTANT NOTE REGARDING CONTENT CURRENCY: JULY 31, 2023, is the date of the most recently produced official NYCRR supplement covering this rule section. For later updates to this section, if any, please: consult editions of the NYS Register published after this date; or contact the NYS Department of State Division of Admisnistrative Rules at [email protected]. See Help for additional information on the currency of this unofficial version of the NYS Rules.