New York Paid Family Leave: Which Employers are Not Covered

Answering some common employer questions

The New York Workers’ Compensation Board on July 19 published its final regulations implementing the New York Paid Family Leave Law (PFL).

Now that the regulations are final, employers should be modifying existing leave policies and processes to incorporate PFL requirements, and to develop new PFL policies that provide employees with information about their rights and obligations under the law. 

We held a webinar on New York’s PFL on July 25, in which we received hundreds of questions. While we didn’t have the opportunity during the webinar to address all the inquiries that we received, we noted afterwards that many employers raised the same questions. Accordingly, this article is dedicated to answering some of the most frequently asked questions we received. We hope this follow-up will be helpful to employers in preparation for the launch of PFL in 2018.

This batch of questions and answers focuses on which employers are and are not covered. We also answer your questions about what certain exempt employers (i.e., those who are not required to have PFL coverage) must do in order to opt in for voluntary PFL coverage. In fact, certain exempt employers have an obligation to make a decision by Dec. 1, as to whether to opt in for PFL coverage and will be required to report their decision to the New York State Workers Compensation Board (WCB).

Q: Are there any employers in New York that are not covered by PFL?

A: Yes. In light of the fact that PFL is intended to piggy back onto the Disability Benefits Law (DBL), it applies to any entity considered a covered employer under DBL. While all private-sector employers in New York that have one or more employees are subject to and must comply with DBL, and now PFL, the same exclusions as to who is a “covered employer” apply. Thus, employers exempt from DBL are also exempt from PFL. PFL does not apply to public-sector employers, including the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality. This exemption applies to cities, villages, towns, public libraries, public authorities, municipalities, fire districts, water districts, and school districts.

A few others who are not required to provide PFL benefits include owners/shareholders of a corporation with no employees, owners/shareholders of partnerships, LLCs, LLPs with no employees, individuals who employ personal or domestic workers that work less than 40 hours per week, Native American enterprises (i.e., casinos), self-employed individuals, or sole proprietors and members of an LLC/LLP.

Q: Can public-sector employers choose to be covered under the PFL law?

A: Yes. The PFL regulations lay out the process a public employer must follow if it elects to opt in. The process is slightly different for unionized and non-unionized employers. If a public employer chooses to cover its non-unionized workers, it must provide 90 days’ notice of its decision to opt in. The notice must tell employees that the payroll deduction will not exceed the maximum amount allowed by law.

Not surprisingly, in order for a public employer to cover its employees who are represented by a union, it must engage in collective bargaining and obtain the agreement of the union. Once an agreement is reached, the employer must notify the WCB for approval.

Notably, public employers are the only employers who can elect to provide DBL only, PFL only, or both DBL and PFL coverage. Public employers who elect to provide PFL must maintain it for at least one year. Prior to discontinuing voluntary PFL coverage, the public employer must provide 12 months’ written notice to the WCB and the affected employees. Those employers will also need to have made provisions for the payment of any benefits incurred on and prior to the effective termination date of such benefits.

Q: Are public-sector employers who are already providing voluntary DBL coverage required to also provide PFL?

A: No. However, public-sector employers that currently provide voluntary DBL to their employees must notify their employees and the WCB whether they will (or will not) be providing PFL to their employees. They must make this decision and report it to the WCB by Dec. 1.           

Christa Richer Cook and Kristen Smith are labor and employment law attorneys at Bond, Schoeneck & King, PLLC in Syracuse. This viewpoint article is drawn from the firm’s New York Labor & Employment Law Report blog. Contact Cook at ccook@bsk.com and Smith at ksmith@bsk.com

Answering some common employer questions

The New York Workers’ Compensation Board on July 19 published its final regulations implementing the New York Paid Family Leave Law (PFL).

Now that the regulations are final, employers should be modifying existing leave policies and processes to incorporate PFL requirements, and to develop new PFL policies that provide employees with information about their rights and obligations under the law. 

We held a webinar on New York’s PFL on July 25, in which we received hundreds of questions. While we didn’t have the opportunity during the webinar to address all the inquiries that we received, we noted afterwards that many employers raised the same questions. Accordingly, this article is dedicated to answering some of the most frequently asked questions we received. We hope this follow-up will be helpful to employers in preparation for the launch of PFL in 2018.

This batch of questions and answers focuses on which employers are and are not covered. We also answer your questions about what certain exempt employers (i.e., those who are not required to have PFL coverage) must do in order to opt in for voluntary PFL coverage. In fact, certain exempt employers have an obligation to make a decision by Dec. 1, as to whether to opt in for PFL coverage and will be required to report their decision to the New York State Workers Compensation Board (WCB).

Q: Are there any employers in New York that are not covered by PFL?

A: Yes. In light of the fact that PFL is intended to piggy back onto the Disability Benefits Law (DBL), it applies to any entity considered a covered employer under DBL. While all private-sector employers in New York that have one or more employees are subject to and must comply with DBL, and now PFL, the same exclusions as to who is a “covered employer” apply. Thus, employers exempt from DBL are also exempt from PFL. PFL does not apply to public-sector employers, including the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality. This exemption applies to cities, villages, towns, public libraries, public authorities, municipalities, fire districts, water districts, and school districts.

A few others who are not required to provide PFL benefits include owners/shareholders of a corporation with no employees, owners/shareholders of partnerships, LLCs, LLPs with no employees, individuals who employ personal or domestic workers that work less than 40 hours per week, Native American enterprises (i.e., casinos), self-employed individuals, or sole proprietors and members of an LLC/LLP.

Q: Can public-sector employers choose to be covered under the PFL law?

A: Yes. The PFL regulations lay out the process a public employer must follow if it elects to opt in. The process is slightly different for unionized and non-unionized employers. If a public employer chooses to cover its non-unionized workers, it must provide 90 days’ notice of its decision to opt in. The notice must tell employees that the payroll deduction will not exceed the maximum amount allowed by law.

Not surprisingly, in order for a public employer to cover its employees who are represented by a union, it must engage in collective bargaining and obtain the agreement of the union. Once an agreement is reached, the employer must notify the WCB for approval.

Notably, public employers are the only employers who can elect to provide DBL only, PFL only, or both DBL and PFL coverage. Public employers who elect to provide PFL must maintain it for at least one year. Prior to discontinuing voluntary PFL coverage, the public employer must provide 12 months’ written notice to the WCB and the affected employees. Those employers will also need to have made provisions for the payment of any benefits incurred on and prior to the effective termination date of such benefits.

Q: Are public-sector employers who are already providing voluntary DBL coverage required to also provide PFL?

A: No. However, public-sector employers that currently provide voluntary DBL to their employees must notify their employees and the WCB whether they will (or will not) be providing PFL to their employees. They must make this decision and report it to the WCB by Dec. 1.           

Christa Richer Cook and Kristen Smith are labor and employment law attorneys at Bond, Schoeneck & King, PLLC in Syracuse. This viewpoint article is drawn from the firm’s New York Labor & Employment Law Report blog. Contact Cook at ccook@bsk.com and Smith at ksmith@bsk.com