The New York Workers’ Compensation Board (WCB) published its final regulations regarding the state’s Paid Family Leave Law (PFL) Wednesday, July 19, 2017. As many of us expected, very little about the final regulations has changed from the most recent proposed regulations issued on May 24, 2017. However, the WCB did clarify certain areas. The following are a few of the clarifications:
- Section 380-2.5(a), regarding employee eligibility requirements, was amended to clarify that an employee regularly scheduled to work 20 or more hours per week will become eligible to take PFL after 26 consecutive weeks of employment, but “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.” The WCB indicated that the new section was added “to clarify that certain jobs, like professors, have built in breaks and that these do not restart the period of employment for purposes of eligibility for paid family leave.”
- Section 380-2.5(c), regarding the computation of an employee’s benefit rate for purposes of PFL taken in single-day increments, was amended to show that the week the employee goes on leave should not be counted as part of the 8-week look back period when calculating the employee’s average weekly wage. This is done to ensure the employee’s PFL benefit is not reduced based on the employee’s partial absence during that week.
- The WCB also clarify that, for purposes of converting the employee’s average weekly wage to an average daily wage, the average number of days worked per week by an employee can take into account fractions of a day.
- A question was raised regarding whether it is optional for employers to provide the waiver of PFL benefits to eligible employees. The WCB clarified that employers are required to provide eligible employees with the option to file a waiver. However, the decision to waive PFL benefits (and the related contribution deductions) remains exclusively with the employee.
- Finally, clarification on Section 380-2.5(f) of the regulations, regarding employees eligible for both statutory short-term disability (STD) benefits and PFL benefits during the same 52 consecutive week “look back” period, which limits employees to a combined total 26 weeks of STD and PFL benefits during that 52-week period. The WCB clarified that this section should be interpreted to count any periods of statutory STD taken in 2017 toward the employee’s total combined STD and PFL benefits available in 2018. That means, for 2018 PFL benefits, the “look back” period extends back into 2017.
The WCB recognizes that there will be additional questions and issues requiring clarification. Going forward, further guidance and examples will be provided “as they arise” and will be available on the Board’s Paid Family Leave website. You can also download a copy of Driven HR’s Paid Family Leave – Frequently Asked Questions at bit.ly/2eRRTGV
Please feel free to contact Frank at firstname.lastname@example.org, or 855-672-4142 with questions or for more information.
Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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