Paid Family Leave
2/22/17 N.Y. St. Reg. WCB-08-17-00010-P
NEW YORK STATE REGISTER
VOLUME XXXIX, ISSUE 8
February 22, 2017
RULE MAKING ACTIVITIES
WORKERS' COMPENSATION BOARD
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. WCB-08-17-00010-P
Paid Family Leave
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Addition of section 355.9 and Part 380; amendment of sections 355.4, 355.8 and Parts 360, 361 and 376 of Title 12 NYCRR.
Workers’ Compensation Law, sections 117, 221, 226 and 205
Paid Family Leave.
Identify requirements and process for implementation of paid family leave program.
Substance of proposed rule (Full text is posted at the following State website:wcb.ny.gov):
Sections 355.4 and 355.8 are amended to include standards for benefits at least as favorable in plans providing for paid family leave.
A new section 355.9 has been added to include paid family leave definitions.
A new subpart 380-1 clarifies applicability.
Subpart 380-2 has been added to describe eligibility for paid family leave and the types of qualifying events necessary to take paid family leave. Qualifying events for paid family leave include leave to care for a child after birth or placement for adoption or foster care within the first 12 months after the birth or placement; for a qualifying exigency arising from the service of a family member in the armed forces of the United States; or to care for a family member with a serious health condition as defined in section 355.9.
Section 380-2.5 provides that full-time employees become eligible after 26 consecutive weeks of work, and part-time workers become eligible on the 175th day of work, and describes the rate of paid family leave for part-time workers, as well as establishing 26 weeks as the maximum amount of disability and paid family leave benefits that may be taken in a year.
Section 380-2.6 provides for a waiver for an employee whose regular work schedule never achieves the 26 weeks or 175 days in a 52 consecutive week period required to become eligible for paid family leave.
Subpart 380-3 has been added to explain the notice requirements for taking paid family leave. If the leave is foreseeable, the employee is required to give the employer at least 30 days advance notice – if they fail to do so, the self-insured employer or carrier may file a partial denial of the family leave claim for up to 30 days. If notice is not practicable, the employee must notify the employer as soon as it is practicable.
A new subpart 380-4 describes the notice of claim and certification requirements for a paid family leave claim, including medical certification and HIPAA authorization. For leave taken to care for a family member with a serious health condition, the employee must obtain medical certification from the health provider with information about the patient’s health condition, and the estimation of frequency and duration of leave necessary, among other information. For a qualifying exigency, the employee must provide a copy of the military member’s active duty orders and/or other documentation supporting the leave.
For leave to bond with a child, the birth mother must provide a birth certificate or documentation of pregnancy or birth from a health care provider including the mother’s name and birth or due date. A second parent must provide a birth certificate, documentation from a health care provider, voluntary acknowledgment of paternity or court order of filiation. An adoptive parent must submit documentation showing an adoption is in process, or documentation illustrating the leave is to further the adoption. A foster parent must submit a letter from the county or city department of social services or local volunteer agency.
A new subpart 380-5 provides information about filing a claim, as well as the payment and denial process of a paid family leave claim, including uninsured employers. The employee must complete the Request for Paid Family Leave on the form designated by the carrier, and, if the carrier allows it, may file the claim in advance if the leave is foreseeable. The carrier will provide the employee with contact information and any missing information, and within 18 days will pay or deny a completed claim. Section 380-5.5 also provides that when the employer is uninsured, such claims will be paid from the Special Fund for Disability Benefits. Parts 380-5.6 through 5.11 provide a framework for method of payment of claims.
Subpart 380-6 has been added to explain the benefit rate and use of accruals by an employee in conjunction with paid family leave.
Subpart 380-7 has been added to detail employer obligations under paid family leave, including collecting contributions, continuing health insurance (as long as the employee continues contributing to the cost as before paid family leave), and maintaining paid family leave insurance coverage as an individual business owner. Employers may deduct contributions before paid family leave becomes effective, and must post a notice concerning paid family leave.
Subpart 380-7 also provides information about penalties for violating a section of paid family leave, as well as the penalty appeal process for employers and carriers. Employers who fail to provide coverage for paid family leave shall be liable for a fine up to one half of a per centum of weekly payroll during the lapse, and an additional sum of not more than 500 dollars. When the employer fails to provide coverage and an employee takes family leave, the employer is liable for the payment of the benefits and waives the contribution amount for that time. If the employer fails to continue health insurance, he or she will be liable for the employee’s medical costs during the time of paid family leave.
When the carrier fails to timely pay the family leave benefits, the carrier will be fined not in excess of 25% of the amount the carrier failed to pay, to be paid into the Special Fund for Disability Benefits. The carrier will also pay the employee 10 dollars for every week benefits are not timely paid.
A new subpart 380-8 provides for reinstatement of the employee to the same or a comparable job upon returning from paid family leave, as well as a process for discrimination or retaliation claims if reinstatement is denied after being formally requested by the employee. The Board will schedule hearings to determine a discrimination case.
Subpart 380-9 has been added to provide a process for disputes related to paid family leave. Any claim-related dispute arising under the paid family leave statute will be eligible for, and subject to, arbitration. This Subpart outlines the arbitration process and fee structure, including requiring a $25 filing fee by the initiating party which is refundable by the carrier should the employee prevail. It also provides that all disputes shall be resolved by desk arbitration unless the arbitrator finds further development of the record necessary.
Subpart 380-10 has been added to provide for public employers that opt-in for voluntary coverage for paid family leave. A public employer may opt-in for paid family leave only. It outlines a process for providing coverage for public employees who are or are not represented by an employee organization as described in section 212-b. Subpart 380-10 also provides that if the public employer already offers disability leave benefits and wishes to provide paid family leave benefits, both must be offered under a single insurance policy.
Subpart 361 is amended to provide that Article 9 benefits (both disability and paid family leave) to employees will meet the requirements of the Superintendent of Financial Services.
Part 361.1 has been amended to provide for including paid family leave in the self-insurance regulations, including the option for self-insurers under section 204 to also self-insure for paid family leave or purchase a paid family leave policy from an insurance carrier.
Part 361.2 has been amended to make clear that self-insurers are responsible for covering the cost of paid family leave if it exceeds the statutory maximum contribution which may be collected from employees.
Part 361.3 has been amended to indicate that the security deposit for a self-insurer for both paid family leave and disability benefits will be combined, and outlines the process for the surety bond.
Part 361.4 has been amended to include clarifying information about self-insurer reports to be submitted to the Department of Financial Services, and outlines what information will be required in those reports.
Part 361.5 has been amended to restrict the use of third-party administrators to those licensed by the Workers’ Compensation Board.
Parts 361.6 and 361.7 have been amended to fix capitalization and numeration.
Part 376 has been amended to change chairman to Chair, and to reflect the minimum amount of deposit for disability benefits only.
Text of proposed rule and any required statements and analyses may be obtained from:
Heather MacMaster, Workers' Compensation Board, 328 State Street, Office of General Counsel, Schenectady, NY 12305-2318, (518) 486-9564, email: firstname.lastname@example.org
Data, views or arguments may be submitted to:
For public comments: https://www.surveymonkey.com/r/PFL_Reg_
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory Authority:
The Chair of the Workers’ Compensation Board (Board) is authorized to adopt a new Section 355.9 and Part 380 of Title 12 of the New York Codes Rules and Regulations (NYCRR), and amend Sections 355.4, 355.8, Subpart 360 and Part 361 of Title 12 of NYCRR. Workers’ Compensation Law (WCL) § 117(1) authorizes the Chair to make reasonable regulations consistent with and supplemental to the provisions of the WCL and the Labor Law.
Article 9 of the WCL also contains statutory authority for the paid family leave law. WCL § 221 expressly authorizes the Chair to adopt rules and regulations to carry out the provisions of this article. Such authority includes, but is not limited to: the resolution of contested claims and requests for review thereof, and payment of costs for resolution of disputed claims by carriers.
WCL § 221 authorizes the Chair to provide for alternative dispute resolution procedures for claims arising under family leave, including but not limited to, referral and submission of disputed claims to a neutral arbitrator under the auspices of an alternative dispute resolution association. Further, § 226(7) allows that the Chair may require by regulation that every policy of family leave insurance contain a provision requiring that all disputes be resolved by a designated alternative dispute resolution process in accordance with those regulations.
WCL § 205(2) details when employees are not entitled to family leave benefits under this article, and § 205(2)(b) authorizes the Chair to prescribe medical certification and notice required for family leave.
2. Legislative Objectives:
The purpose of the Paid Family Leave Act in Chapter 54 of the Laws of 2016, effective April 1, 2016, was to provide financial stability while caring for a family member. The federal Family Medical Leave Act provides leave without pay, but many employees cannot afford to leave work to care for their family member without pay. New York’s paid family leave, on the other hand, allows employees to care for family members while receiving a portion of their pay, which will greatly enhance the quality of life for New York employees. This leave allows an employee to be able to provide physical or psychological care to a family member for a variety of reasons, including a serious health condition, the birth of a child, the placement of a child for adoption or foster care with the employee, or when the employee’s family member is called up for active duty in the armed forces.
Paid family leave represents an important initiative for Governor Cuomo, with the ultimate goal of greatly enhancing the quality of life for New Yorkers across the state. Providing a measure of financial stability to employees in New York as they care for a sick or injured family member allows employees to both care for their families and return to their job when the leave is over. Adopting regulations to implement the paid family leave benefit as a complement to the disability benefits law will contribute to a smoother and more efficient start to providing family leave benefits to employees in New York. Paid family leave also aims to increase job satisfaction, and in turn contribute to greater employee retention in New York State. When employees can take care of their family members without unpaid leave, and afterward return to their job, that security means a great deal.
3. Needs and Benefits:
Prior to the adoption of Chapter 54 of the Laws of 2016, the federal Family Medical Leave Act provided leave to some employees to take care of a family member or themselves. This leave only applies to employers with more than 50 employees – excluding a large number of employees in New York. Additionally, the leave is unpaid, which, for many employees in New York and elsewhere, means that they cannot afford to take advantage of the benefit, as they rely on each paycheck to make ends meet.
Chapter 54 of the Laws of 2016 added paid family leave benefits to the disability benefits article of the WCL. These benefits apply to any employer with employees, not just those with at least 50. The leave is also paid, unlike the federal leave, and allows an employee in New York to care for a family member, including a new child (through birth, adoption, or foster care), while receiving a portion of their pay. It also protects the employee’s return to their job upon the expiration of leave without fear of being fired for taking available leave. The proposed part 380 creates a framework within which to execute the paid family leave statute, which removes uncertainty and doubt, and provides guidance on eligibility and the process of taking paid family leave to ensure that the transition works well.
The paid family leave benefit is available for a maximum of 12 weeks, and has specific eligibility requirements for what the leave may be used for, including caring for a family member with a serious health condition, bonding with a new child (as a result of birth or placement of a child from adoption or foster care), and for a qualifying exigency arising out of the fact that a spouse, domestic partner, child, or parent of the employee has been called to active duty in the armed forces of the United States.
This leave provides a valuable tool for employees in New York to balance their work lives with important obligations to family members, and does so for a limited period of time in order to provide financial security to those who need to take time away from work to care for a family member without abandoning the needs of the employer.
Paid family leave provides widespread benefits across New York State. Employees in New York will be able to take leave and receive a portion of their pay. With the federal Family Medical Leave Act, only employees with enough money to be able to afford to take unpaid leave could do so to care for themselves or other family members in need. With the passage of New York’s paid family leave in the disability benefits law, a whole new base of employees will be able to afford to take leave to care for family members, because they will be receiving money while on leave and can return to work after the leave is over.
Paid family leave will benefit both employers and employees and their family members across New York. As stated above, employees who could not afford to take unpaid leave to care for a family member will now be able to take leave to care for their family members in need as a result of the paid family leave statute. This provides a benefit not only to the employee who can now afford to take such leave, but also to the family member for whom the leave is being taken.
Family members with serious health conditions meeting the eligibility requirements of paid family leave are unable to work, attend school, perform regular daily activities, or are otherwise incapacitated due to illness, injury, impairment, or physical or mental conditions. This is not a situation where the family member is feeling under the weather – it is a serious health condition, defined in 355.9, and situations where the employee’s care is necessary. Paid family leave allows the employee to provide that care without risking their job security and financial stability, which provides a benefit to the family member with a serious health condition in that the employee can afford to take leave to care for them.
Employees are also eligible for paid family leave to bond with a new child when he or she is born, during the first 12 months of the child’s life. This provides a benefit to both the parent and the child. The employee can create a stronger bond with the child at home, for up to the 12 weeks of the benefit. The child also receives a substantial benefit, having his or her emotional and physical needs met continuously for the period of the family leave benefit, without the cloud of financial instability hanging over the employee.
Providing paid family leave to employees with a family member called to active duty in the armed forces serves an important benefit to the employee, employee’s family member, as well as a general benefit across the state.
There is an anticipated benefit to employers in New York, as well. Because paid family leave offers the ability to take care of family members, employees will be able to do so without fear of losing their job. The statute and regulations prohibit an employer from refusing to reinstate an employee simply for taking paid family leave. This increase in job security and financial stability should lead to greater employee job satisfaction, and in turn, increased employee retention for employers. Satisfied employees tend to be more productive, which obviously benefits the employer. Satisfied employees are also more likely to stay at their jobs, which also benefits employers in the form of employee retention – less turnover allows the employer’s business to be more efficient and productive if the employer is not constantly interviewing and training new employees.
The proposed Part 380 should not impose significant costs on employers in New York, employees in New York, and insurance carriers in New York. First and foremost, Part 380 provides guidance and a plan for smooth implementation of the paid family leave statute that became effective on April 1, 2016 in New York. The proposed rules work to implement the statute while avoiding any costs above what the law requires. The maximum employee contribution, to be set by the Superintendent of Financial Services, should be a modest deduction from each employee’s paycheck. The cost of the premium for the addition of paid family leave to an employer’s disability benefits policy will be covered in total by the employee’s contribution.
Insurance carriers are not required to offer paid family leave coverage. Accordingly, it is believed that they will not offer this benefit unless it makes financial sense for them to do so. Because paid family leave is a new benefit enacted by statute in New York, employers, employees, and insurance carriers will all need to make administrative adjustments to implement the new regulations. There will be a cost to implement paid family leave into the policies which currently offer disability benefits. However, the process to actually take the leave is similar to the federal Family Medical Leave Act model that employers with over 50 employees are already familiar with, and similar to the disability benefits process. Moreover, the paid family leave benefit is a limited benefit for a relatively short period of time, eight weeks in the first year up to a maximum of 12 weeks. In the event of unintended cost implications, the Superintendent of Financial Services may decline to increase benefit levels in any given year.
It is assumed that any costs associated with providing for employment coverage while the employee is taking family leave will be offset by greater employee job satisfaction and retention rate. This has been the experience reported in other states that have implemented paid family leave. By providing the option to take family leave, employees are more likely to be satisfied with their jobs – and thus more productive while at work. Section 380-2.5 also provides that the employee may only receive 26 total weeks of both disability and family leave benefits, and the employer may designate paid family leave as concurrent to leave pursuant to the Family and Medical Leave Act. The relatively stringent eligibility requirements also limit the cost to employers of having an employee out on paid family leave.
Employees will be required to make modest contributions to paid family leave as a payroll deduction. While an employee eligible for paid family leave is required to contribute through payroll deductions, the cost is nominal compared to the benefit they would be receiving should they use the paid family leave. Any employee who uses even a portion of the paid family leave benefit offsets the cost of contributions to the insurance policy. Additionally, there are employees, such as those who work less than 26 weeks or 175 days in a 52-consecutive week period, who are not eligible for paid family leave and could obtain a waiver.
There are administrative costs to the insurance carriers, as well. Under section 380-7.8, every carrier that provides short-term Disability Benefits insurance policies must also offer paid family leave coverage. The insurance carrier must create and carry the policies, and pay out benefits to the employees who take paid family leave. Presumably, the carriers will be able to recover these administrative costs through the premium charged for paid family leave.
In the event of a denial to an employee’s entitlement to paid family leave benefits, section 380-9.4 requires a filing fee in the amount of 25 dollars by the initiating party, refundable to the employee by the carrier or self-insured employer if the employee prevails. In addition, section 380-9.10 requires the carrier to pay a fee not to exceed 350 dollars for a desk arbitration or a fee not to exceed 450 dollars for an oral hearing. The vast majority of resolution of denials of paid family leave will be desk arbitrations without a hearing, and the carrier should not incur the expenses of a lengthy hearing process, and proper claims examination should result in fewer erroneous denials.
5. Local Government Mandates:
While public employers may opt-in to paid family leave benefits, there is no mandate on local government to offer the program or provide any administrative oversight.
Part 380 requires an employee to make a request for paid family leave to the insurance carrier or self-insured employer and supply copies of supporting documentation (e.g. a birth certificate or medical certification) that supplies the details surrounding the family leave requested. While the Board will promulgate a form that meets the requirements of the statute and the regulations, the carrier or self-insured employer may accept the filing of this request in another format such as by phone or electronic portal.
In addition, all employers are required to print a notice with information about paid family leave as well as how to file a complaint. If many of the employer’s employees do not read and write in English, the notice must also be printed in a language in which the employees can read and write – and employers must also follow all federal and state laws for notices provided to sensory-impaired individuals.
Part 380 and paid family leave is a new part to implement the paid family leave statute effective April 1, 2016. Because it is a paid benefit, it does not duplicate the federal Family Medical Leave Act.
An alternative to the regulations executing paid family leave would be to keep only the disability regulations in place and not add paid family leave regulations. However, without regulations in place to flesh out the claims process and obligations of employers and carriers, as well as employees, paid family leave would be extremely difficult to implement. The proposed regulations seek to provide for smooth implementation of the paid family leave statute that became effective on April 1, 2016. At this time alternatives to the regulations proposed have not been discussed.
9. Federal Standards:
The federal Family Medical Leave Act requires employers with more than 50 employees to provide unpaid leave for employees to take care of either themselves or a family member. The New York paid family leave initiative is narrower than the Family Medical Leave Act - leave may be taken only to care for family members, not the employee.
10. Compliance Schedule:
Employees in New York will be able to take paid family leave beginning January 1, 2018, and payroll deductions for contributions to paid family leave may begin July 1, 2017.
Regulatory Flexibility Analysis
1. Effect of rule
Under the paid family leave statute, every covered employer in New York State, meaning an employer with one or more employees on each of at least 30 days plus four weeks in a calendar year, is subject to the proposed regulations and they must provide paid family leave benefits to their employees. This will be a change for small employers as they do not have to comply with Family Medical Leave Act, which only applies to employers with 50 or more employees. Local government and public employers do not have to provide paid family leave benefits to their employees, but may opt in to provide paid family leave.
2. Compliance requirements
The paid family leave statute requires covered employers to offer paid family leave coverage to their employees. It is an employee-funded insurance product, and contributions will be deducted directly from the employee’s paycheck. The employer, in turn, will use the contributions from the employees to pay the premiums for the paid family leave policy. Coverage may be obtained by the State Insurance Fund, a licensed New York State insurance carrier, or, if certain requirements are met and the Board approves, the employer may self-insure for paid family leave benefits. The employer must also offer written guidance on paid family leave to their employees, as well as post a printed notice about PFL, the form of which will be prescribed by the Chair. As long as the employee using paid family leave continues to pay premiums, the employer must also continue health insurance coverage for the employee during paid family leave. Upon returning from paid family leave, the proposed regulations entitle the employee to reinstatement to the same or comparable job, as well.
If the employer fails to comply with providing coverage for family leave benefits, they may be fined up to one-half of a per centum of the employer’s weekly payroll for the period of the failure to comply, and an additional sum not more than $500, which will be paid into the Special Fund for Disability Benefits. If a covered employer does not collect contributions from its employees and fails to cover by purchasing an insurance policy or self-insuring, the employer is fully and directly liable to each of the employees for payment of family leave benefits. The employer also waives the employees’ contributions for the period(s) where no family leave coverage was provided.
3. Professional services
It is believed that no professional services will be needed by small businesses or local governments to comply with the proposed regulations.
4. Compliance costs
Compliance with the proposed regulations should not impose significant compliance costs on small businesses or local governments. The paid family leave statute provides that paid family leave benefits are employee-funded, so the employer may collect the contributions from employees. Minimal costs to update the employee handbooks or provide written guidance about paid family leave to employees may be incurred, but beyond that the compliance costs to small businesses or local governments should be negligible, especially for those employers who already offer disability benefits in compliance with New York State law.
5. Economic and technological feasibility
Compliance with the proposed regulations is technologically and economically feasible for small business and local governments. Employers are already familiar with providing workers’ compensation and disability benefits to their employees, as well as health insurance, so this is simply another insurance product to add to the list for employee contributions. Family leave benefits serve as a complement to the disability benefits law, which many employers are also familiar with. No additional technology will be required to comply with the proposed regulations – small businesses and local governments already deal with insurance products and how to provide them to their employees.
6. Minimizing adverse impact
The proposed regulations were written to provide a framework to implement paid family leave according to the statute, as well as to avoid adverse impact on all employers, employees, and insurance carriers. The paid family leave benefits themselves are to be paid from employee contributions, easing any burden on the employers. Allowing leave to be taken to care for a family member also allows leave to be taken while ensuring the employee can return to his or her job afterward, and is expected to increase job satisfaction and employee retention as a result of the financial security and stability offered by paid family leave.
To further minimize any adverse impact on small businesses and any local governments that opt in to paid family leave, the proposed regulations will be phased in over the course of a few years instead of all at once. The maximum benefit rate, as well as maximum benefit time, will range from 50 to 67% of average weekly wage and eight to 12 weeks from 2018 to 2021.
7. Small business and local government participation
The Business Council of New York State and the AFL-CIO provided input on the proposed regulations.
8. Cure period
This rulemaking will neither establish nor modify a violation created by statute, nor will it require a provision for a period of time to afford small businesses or local governments a period of time to come into compliance with the rule before it is enforced.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas
The proposed regulations apply to all covered employers, including those in rural areas. Regardless of geographical area of New York State, if the employer has one or more employees on each of at least 30 days plus four weeks in any calendar year, the paid family leave statute requires that they must offer paid family leave coverage.
2. Reporting, recordkeeping and other compliance requirements; and professional services
The same compliance requirements apply to rural employers, employees and carriers as in metropolitan areas. Covered employers must provide paid family leave coverage to their employees. This is done through the New York State Insurance Fund, a licensed New York State insurance carrier, or through self-insurance if certain requirements are met and the Board approves. Other than purchasing a paid family leave insurance policy from a licensed New York State insurance carrier, no special professional services should be required by rural or any other areas. The covered employers must also provide either an update to employee handbooks or provide written guidance regarding paid family leave benefits to their employees. Paid family leave is funded by employees through a modest deduction from each employee’s paycheck. Employees who take paid family leave are also entitled to reinstatement to their same or comparable job upon returning to work under the proposed regulations.
Failure by the employer to provide paid family leave benefits to its employees renders them fully and directly liable to their employees for the benefits, and may subject the employer to a fine of up to one-half of a per centum of weekly payroll for the period the employer was without coverage, and an additional sum of not more than 500 dollars.
The costs to carriers, employers and employees across the state will be minimal, and the proposed regulations do not impose additional costs beyond what is set forth in the paid family leave statute that became effective on April 1, 2016. Additionally, paid family leave is an employee funded insurance product, so the employer may collect contributions from all its employees to pay the premiums for the insurance product. The cost is shared among employees, so the contribution is a modest deduction from each employee’s paycheck.
Insurance carriers will incur administrative costs associated with creating and carrying paid family leave insurance policies, as every carrier who offers short-term Disability Benefits is also required to offer paid family leave coverage. However, it is expected that the insurance carriers should recover those costs through the premiums charged for the coverage and paid by the employee contributions. There will be administrative costs associated with arbitration – the filing party will be responsible for a 25 dollar filing fee (the employee can be reimbursed if they prevail on the claim) and the carrier responsible for the arbitration fee for disputes: up to 350 dollars for desk arbitrations, which are the majority of arbitrations, or 450 if an oral arbitration is deemed necessary.
4. Minimizing adverse impact
The proposed regulations aim to minimize adverse impact for businesses and employees alike, by providing leave that allows employees to balance work and life. Employees pay for the insurance product through payroll deductions, but that cost is shared by all eligible employees, thus minimizing the burden on employees. In turn, employers do not have to pay for the benefit. Paid family leave provides an opportunity for financial security for employees while taking care of a family member in need, and also is expected to promote greater job satisfaction and thus employee retention when it becomes clear that they do not need to sacrifice their job in order to take care of important family obligations outside of the workplace. Overall, these benefits are expected to offset the compliance costs and any adverse impact on rural areas.
To further minimize any adverse impact on rural and other areas, the proposed regulations will be phased in over the course of a few years instead of all at once. The maximum benefit rate, as well as maximum benefit time, will range from 50 to 67% of average weekly wage and eight to 12 weeks from 2018 to 2021.
5. Rural area participation
Comments were received from the Business Council of New York State and the AFL-CIO regarding the impact on all of their constituents including those in rural areas.
Job Impact Statement
1. Nature of Impact
The Paid Family Leave Act and proposed Part 380 of Title 12 of the NYCRR is not expected to have a negative impact on jobs in New York State. It is expected that job satisfaction will increase and employers will reap the benefits of that increase. Employees will be able to take family leave to care for a family member without the fear of losing their job. As has been the experience in other states that have adopted a paid family leave benefit, providing employees the flexibility of this benefit results in better employee retention and increased job satisfaction. The proposed regulations were drafted to minimize adverse impact on jobs in New York State and provide for a smooth implementation of the paid family leave statute.
2. Categories and Numbers Affected
Virtually every New York State private employer will be affected by the Paid Family Leave Act and the supporting regulations. However, by allowing employees to take this leave without fear of losing their jobs, it is anticipated that this will actually be a benefit to the employer. Employees in New York are also affected by the paid family leave regulations. Instead of possibly having to choose between taking leave to care for a family member and maintaining employment, the proposed regulations will allow a better balance of work and life responsibilities, leading to greater job satisfaction and job retention.
3. Regions of Adverse Impact
The Paid Family Leave Act and its supporting regulations will be implemented state-wide. Paid Family Leave is provided in an insurance product, and does not create a burden on employers or jobs in general. Accordingly, there are no specific regions of adverse impact. One possible adverse impact is that the employee taking leave will be absent from their job for a period of time. However, the benefit of being able to take paid family leave to care for family members, and the security of being able to return to work after leave, is expected to offset this impact and lead to greater job satisfaction and thus increased employee retention. This has been the experience reported by employers in other states that have adopted a paid family leave program.
4. Minimizing Adverse Impact
The statute provides, and the regulations support, a gradual phase-in of the family leave benefit. The maximum benefit duration is limited to 12 weeks when fully implemented, but to further minimize any adverse impact, the first year the benefit duration will be limited to eight weeks, then 10, then fully phased in at 12 in 2021. Similarly, the maximum benefit amount will be phased in at 50% of the average weekly wage in stages up to the full amount of 67% in 2021.
Also minimizing this possible adverse impact of having employees out on leave is the expected enhancement of life for New York State employees (and in turn, New York State employers) – when work and life balance can be met, and family members can be taken care of by employees without fear of losing employment, it is assumed that greater job satisfaction will result, and employees will be satisfied and stay at their current employment. This benefit has been reported by employers in other states that have adopted paid family leave.
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