New York Adds Leave Law for Victims of Domestic Violence

Posted on: September 30, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

September 30, 2019

Effective November 18, 2019, New York employers with 4 or more employees must provide reasonable leave to employees who are victims of domestic violence.  With this law New York joins a growing number of jurisdictions that provide job-protected leave of absence and other accommodations to employees who are victims of domestic violence, sexual assault, and stalking. 

We previously wrote about these laws here.  

Key provisions of the New York law are summarized below:

Covered employees. “Victim of domestic violence” means:

  • any person over the age of sixteen;
  • any married person; or
  • any parent accompanied by his or her minor child or children

. . . in situations in which such person or such person’s child is a victim of an act which would constitute a criminal act including, but not limited to, acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; AND

  • such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical
    or emotional harm to such person or such person’s child;  and
  • such act or acts are or are alleged to have been committed by a family or household member.

View New York Social Services law § 459-a.

There are no eligibility requirements such as length of employment or hours worked; all employees are covered if they fit the above definition of a victim of domestic violence.

Leave reasons.  Reasons for leave are limited to:   

  • Seeking medical attention for injuries caused by domestic violence, including for a child who is a victim of
    domestic violence, provided that the employee is not the perpetrator of the domestic violence against
    the child; or
  • Obtaining services from a domestic violence shelter, program, or rape crisis center as a result of domestic
    violence; or
  • Obtaining psychological counseling related to an incident or incidents of domestic violence, including for
    a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the
    domestic violence against the child; or
  • Participating in safety planning and taking other actions to increase safety from future incidents of
    domestic violence, including temporary or permanent relocation; or
  • Obtaining legal services, assisting in the prosecution of the offense, or appearing in court in relation
    to the incident or incidents of domestic violence.

Undue hardship.  An employer may decline a requested leave if the employer can demonstrate that the employee’s absence would impose an undue hardship, based on consideration of factors such as: 

  • The overall size of the business, program or enterprise with respect to the number of employees, number
    and type of facilities, and size of budget; and
  • The type of operation in which the business, program, or enterprise is engaged, including the composition
    and structure of the workforce.

Paid time off and benefits.  The employer can require an employee to use available paid time off during the leave unless otherwise provided for in a collective bargaining agreement or existing employee handbook or policy.  Any absence not covered by such paid time off may be without pay.  The employee is entitled to continuation of any health insurance coverage provided by the employer on the same terms as available during other similar absences. 

Employee notice and documentation.  An employee taking leave pursuant to the law must provide the employer with “reasonable” advance notice unless that is not feasible under the circumstances.  The law does not identify how much advance notice is reasonable, but presumably that is determined by the situation, such as when the employee learned of the need for time off. 

Oddly, the employer can request documentation of the leave reason only if advance notice was not feasible.  In that case, upon request by the employer, such documentation must be provided within a reasonable time after the absence and may include:

  • A police report indicating that the employee or his or her child was a victim of domestic violence;
  • A court order protecting or separating the employee or his or her child from the perpetrator of an act of
    domestic violence;
  • Other evidence from the court or prosecuting attorney that the employee appeared in court; or
  • Documentation from a medical professional, domestic violence advocate, health care provider, or
    counselor that the employee or his or her child was undergoing counseling or treatment for physical
    or mental injuries or abuse resulting in victimization from an act of domestic violence.

Other provisions.

Employers have a duty to maintain confidentiality of information received about an employee’s status as a victim of domestic violence.

If an employee becomes disabled as a result of domestic violence, the employer must treat the employee the same as an employee with any other disability under New York law, including provisions that make discrimination and refusal to provide reasonable accommodation of disability unlawful discriminatory practices. (Of course, the federal Americans with Disabilities Act would also apply.)

The law also prohibits employers from discriminating against an employee or applicant because of the individual’s status as a victim of domestic violence such as by refusing to hire or discharging the individual; and prohibits employers from inquiring about an individual’s status as a victim of domestic violence except in relation to a requested leave. 

MATRIX CAN HELP!   At Matrix we administer these domestic violence and sexual assault laws.  We call them “Personal Protected Leave” to preserve the employee’s (and/or victim’s) privacy.  In addition to those jurisdictions listed in our prior blog post here, another recent addition to these laws is that of Puerto Rico.  We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com.

NEW YORK ADDS ORGAN DONATION TO STATE PAID FAMILY LEAVE REASONS

Posted on: November 12, 2018 0

Last month we addressed some leave of absence bills pending in various state legislatures.  New York’s governor has signed one of these bills into law, adding organ and tissue donation to the definition of “serious health condition” under the New York Paid Family Leave law (NY PFL).

Specifically, a serious health condition will now include “transplantation preparation and recovery from surgery related to organ or tissue donation.”  NY PFL only applies to leave to care for a family member with a serious health condition and other family leave reasons, so this will not affect employees’ own disability leaves. The law does not make any additional changes to the NY PFL, but it does include a prohibition against discrimination in the provision of life, accident, health, and long term care insurance based on the status of an insured as a living organ or tissue donor.

Definitions of “organ” and “tissue” are incorporated from the NY Public Health Law as follows:

4. “Organ” means a human kidney, heart, heart valve, lung, pancreas, liver or any other organ designated by the commissioner in regulation in consultation with the transplant council.

10. “Tissue” means a human eye, skin, bone, bone marrow, heart valve, spermatozoon, ova, artery, vein, tendon, ligament, pituitary gland or a fluid other than blood or a blood derivative.

What impact will this law have on family care leaves under NY PFL? Perhaps very little. Under NY PFL an employee is already entitled to take paid time off to care for certain family members with a serious health condition. This term is defined to include an illness, injury, impairment, or physical or mental condition that involves:

(1) inpatient care in a hospital, hospice, or residential health care facility; or

(2) three days of incapacity due to a medical condition and continuing treatment or supervision by a health care provider

It is hard to imagine a situation where an employee’s family member is an organ or tissue donor that doesn’t already satisfy one or both of these definitions of serious health condition.   As a result, there is not likely to be much, if any, increase in use of NY PFL to care for a family member due to this new law.

The text of the law can be accessed through a link on this page.   The new law goes into effect on February 3, 2019.

 

Matrix Can Help!

At Matrix we monitor state and federal legislative developments daily and report on any new or advancing leave- and accommodation-related laws to keep our clients and other business partners up to date.  If you ever have questions about leave and accommodation laws – current or just introduced! – please contact your account manager or send an email to ping@matrixcos.com.

New York Makes Paid Family Leave “Notice to Employees” Available

Posted on: November 14, 2017 2

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director-Employment Law/Compliance  

Section 380-7.2.e. of the New York Paid Family Leave law requires employers to post a notice to employees of their rights under the law:

Every covered employer must display or post, and keep posted, a typewritten or printed notice concerning PFL in a form prescribed by the Chair.  The notice must be displayed in plain view where all employees and/or applicants can readily see it.

The state has now issued form PFL-120 for employers to use for this purpose.  It can  be obtained by sending an email to certificates@wcb.ny.gov.

For more information about New York Paid Family Leave, check out our previous blog posts:  October 2017,  October 2017, August 2017, July 2017, May 2017, March 2017, and April 2016.

 

Tax Implications of New York Paid Family Leave Addressed

Posted on: August 28, 2017 0

By Marti Cardi, VP-Product Compliance &

Gail Cohen, Director-Employment Law/Compliance

 

The state of New York has released much-needed guidance on the tax implications of employee premium contributions and benefits under the state’s new Paid Family Leave (PFL), slated to go into effect on January 1, 2018.  According to the New York Department of Taxation and Finance:

Benefits paid to employees will be taxable non-wage income that must be included in federal gross income.

Taxes will not automatically be withheld from benefits; employees can request voluntary tax withholding.

Premiums will be deducted from employees’ after-tax wages.

Employers should report employee contributions on Form W-2 using Box 14 – State disability insurance taxes withheld.

Benefits should be reported by the State Insurance Fund on Form 1099-G and by all other payers on Form 1099-MISC.

The Department released this guidance upon consideration of applicable state and federal laws and regulations, and after consultation with the federal Internal Revenue Service (IRS).  The Department warns, however, that every employee, employer and insurance carrier should consult with its own tax advisor.

The Department’s Notice can be found here:  https://www.tax.ny.gov/pdf/notices/n17_12.pdf.

We have written about the New York Paid Family Leave law in previous blog posts in July 2017, May 2017, March 2017, and April 2016.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

New York Paid Family Leave – Proposed Regulations Announced

Posted on: March 2, 2017 0

By Marti Cardi, VP-Product Compliance

The New York Paid Family Leave act goes into effect on January 1, 2018.  This law provides both job protection similar to the FMLA, and also provides a pay benefit to employees during covered leaves of absence.  Now, New York Governor Cuomo has announced that the proposed regulations in support of the law have been published in the State Register and are open for public comment for 45 days.  Links to the text of the proposed regulations and related materials can be found on the New York State website here.

The law phases in from 2018 through 2021.  Job-protected leave starts at 8 weeks per 12-month period and increases to 12 weeks; pay benefits start at 50% and increase to 67% in 2021.  Leave is available to bond with a new child, care for a family member with a serious health condition, and tend to matters due to the active duty military deployment of a family member.    A more detailed review of the law’s provisions is available on our prior Matrix Radar blog post here and in the state’s announcement of the proposed regulations.

The state has also created a new helpline (844) 337-6303 and a new website to answer questions and provide more information about the paid leave program.

Part of a Trend

Three other states – California, New Jersey, and Rhode Island –  also have state programs for paid family leave, and Washington, D.C., has passed such a program to go into effect in 2020 (subject to review by the U.S. House and Senate).  These states and also Hawaii, New York, and Puerto Rico offer separate programs for disability insurance for an employee’s own health condition.

But that’s not all!  As of February 28, the following 10 states have also introduced legislation for paid family leave:  Connecticut, Hawaii, Illinois, Missouri, Oklahoma, Oregon, South Dakota, Tennessee, Texas, and Virginia (died in committee within 3 weeks of proposal – that was quick!).  Some of these also include pay benefits for leave due to the employee’s own health condition.  In addition, the state of Washington passed paid family leave legislation in 2007 but it never went into effect due to lack of funding.  Washington has introduced new bills this year to provide that funding and implement its paid leave law.

Matrix and Reliance Standard Can Help!

At Matrix we have been waiting for this development. We will closely review the proposed regulations, inform our clients, business partners, and readers of any significant provisions, and submit comments to the state if appropriate. We’ll do the same when the regulations – as is or revised – become final.

In the meantime, Matrix’s compliance and product leaders are guiding a team with representatives from all affected functional areas in preparing to administer the job-protected leave provisions of the law effective January 1, 2018.  Our sister company, Reliance Standard Life Insurance Company, has likewise assembled a team of representatives from all functional areas to design the product offering.  In order to be ready by the effective date, Reliance Standard has already created system requirements and is preparing to start development.

If you have questions or want more information, contact us at ping@matrixcos.com or salesandmarketingHQ@rsli.com.