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.

STATE LEAVE LAW UPDATES – WHAT’S HAPPENING IN YOUR NECK OF THE WOODS?

Posted on: October 22, 2018 0

California – New leave reason under paid family leave

California’s paid family leave law (CA PFL) provides up to 6 weeks of paid (but not job protected) leave of absence for family reasons. Current bases for which an employee can receive paid benefits include caring for a family member with a serious health condition and bonding with a new child.  Recently the California legislature passed, and the Governor signed, a bill adding military exigencies as a leave reason for which an employee can receive paid leave.  The events for which military exigency leave can be taken are the same as under FMLA, when the need is related to the military member’s active duty or call to active duty: 

  • Matters related to short-notice deployment
  • Military events and related activities
  • Childcare and school activities
  • Financial and legal arrangements
  • Counseling (other than from a health care provider)
  • Rest and recuperation
  • Post-deployment activities
  • Care for the parent of the military member
  • Additional activities agreed to by the employer and employee

The new law will be effective January 1, 2021; not clear why the big delay! The law does not expand the total paid leave time available to employees under CA PFL, nor does it provide job protection for this leave. Eligible employees will continue to have job-protected military exigency leave for up to 12 weeks under FMLA, which will run concurrently if the leave is taken for a reason covered by both laws.  However, military exigency leave is not provided by the California Family Rights Act (CFRA).

 

Pennsylvania – Expanding FMLA-like leave rights to care for more family members

The Pennsylvania legislature has revived a bill first introduced in 2017 that, if enacted, would provide FMLA-like leave based on additional family relationships and leave reasons.  Senate Bill 479  seeks to add siblings, grandparents, and grandchildren as family members for whom an employee can take job-protected leave, but only in very limited circumstances. The state bill incorporates some of the federal Family and Medical Leave Act’s provisions, such as employee eligibility rules and the definitions of employee and employer.

The additional family relationships for which leave would be provided are:

  • Grandparent: a biological or adoptive grandfather or grandmother or step-grandfather or step-grandmother
  • Grandchild: a biological or adoptive grandson or granddaughter or step-grandson or step-granddaughter
  • Sibling: a biological or adoptive brother or sister or stepbrother or stepsister

But, leave can be taken for these family members ONLY if the grandparent, grandchild, or sibling:

  • Has a certified terminal illness AND
  • Does not have a living spouse, child over 17 years of age or parent under 65 years of age

The bill, if passed, will provide 6 weeks of leave in a 12-month period that must be taken in minimum increments of one week. The leave will not run concurrently with FMLA because the new family relationships are not covered by FMLA. Conversely, however, FMLA leave taken will reduce an employee’s leave entitlement under the state statute.  How that provision will work is not entirely clear, but presumably the state is trying to provide leave for additional reasons without increasing an employee’s total leave entitlement in a 12-month period to more than the 12 weeks provided by the FMLA.

The bill also contains employee notice and certification provisions.

 

New York – Lingering attempts to expand leave reasons under the Paid Family Leave Act

New York’s Paid Family Leave Act (NY PFL), which went into effect on January 1, 2018, currently provides paid leave for bonding, caring for a family member with a serious health condition, and military exigencies related to a family member’s active duty deployment.  Benefits in 2018 are 8 weeks of leave paid at 50% of the employee’s average weekly wage (subject to a cap).  Those will increase to 10 weeks at 55% in 2019.  We provided a summary of the changes in this prior post.  For a refresher on NY PFL and other recent developments, check out our earlier posts on this blog by searching “New York.”  For more information, the official state website is here.

Several bills are currently pending in the New York legislative process for possible expansion of available leave reasons.  Here is a summary of the most pertinent.

Bereavement.   New York Senate Bill 8380A has passed both houses of the New York legislature and is awaiting (since June!) the governor’s signature or veto.  If passed, the bill adds bereavement due to the death of a family member as a leave reason for NY PFL.  Opponents of the bill point out that there is no time limit on usage of bereavement leave in relation to the date of the family member’s death, no limit on how much time can be used, and no limit on usage increments – so the employee can use bereavement leave in one-day increments as with other leaves under NY PFL.

Organ & tissue donation.  New York Senate Bill 2496 is also awaiting the governor’s signature. If signed, this bill will amend NY PFL to add “transplantation preparation and recovery from surgery related to organ or tissue donation” to the definition of serious health condition.  The bill 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.

Domestic violence.  Also pending, but farther back in the legislative process, is Senate Bill No 7723 that would add matters related to domestic violence as reasons for which an employee can take NY PFL.  Types of activities covered include getting medical attention, attending counseling sessions, seeking legal assistance, attendance in court proceedings, communicating with an attorney, relocating to a permanent or temporary residence.  The bill limits the amount of paid leave available for these reasons to 2 weeks, plus an additional 2 weeks of unpaid leave.  This bill has not made any headway in the legislature since early this year, but is still alive.  We previously provided details about this problematic bill here.

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.

Meanwhile, Back in New York  . . .  Increases in PFL Benefits, Durations, and Premiums

Posted on: September 5, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

Here we are, 8 months into the first year of paid family leave in the state of New York.  My attention, and that of many employers, has been diverted somewhat to the upcoming paid family and medical leave law enacted by the state of Washington, with premium collections beginning in January 2019. (For more information on Washington, you know where to go: www.matrix-radar.com, and search for anything about Washington.) 

But New York marches on, and we are closing in on changes to the NY PFL program that will go into effect January 1, 2019.  The statute itself has built-in annual increases in the employee benefits percentage and leave duration for the 3 years after implementation.  In addition, the Superintendent for the NY Department of Financial Services is to publish by September 1 of each year the rate for employee premiums for the policy period beginning on the following January 1. That information was released on August 31, 2018, and is available here.

Here’s how NY PFL premiums and benefits compare from 2018 to 2019:

Effective Duration State Annual Weekly Wage (AWW) Employee Premium* (capped at same % of state AWW) Maximum Employee Premium Employee Benefit (capped at same % of state AWW) Max Benefit per Week
Jan 1 – Dec 31, 2018 8 weeks $1,306 0.126% of employee’s weekly wage $1.65 / week

 

$85.56 / year

50% of employee’s AWW $652.96
Jan 1 – Dec 31, 2019 10 weeks $1,357.11 0.153%  of employee’s gross wages each pay period $2.08 / week

 

$107.97 / year

55% of employee’s AWW $746.41

*The state uses slightly different terminology to describe the employee’s payroll contributions in 2018 and 2019, but the result should be the same – take the premium out of the employee’s paycheck at the proper percentage of that pay period’s wages until the maximum annual employee premium has been met.

Carryover of leaves from 2018 to 2019

At this point, one pressing question on employers’ minds is how much leave and benefits are available if an employee’s leave starts in 2018 but carries over into 2019? Here are some FAQs from the NY PFL website update for 2019:

  • If I start my continuous leave in 2018, and it extends into 2019, am I eligible for the benefits at the
    2019 rate and an extra two weeks?

    You get the benefit rate and number of weeks in effect on the first day of your leave.

Managing an intermittent leave that carries over is – of course! – more complex:

  • If I start my intermittent leave in 2018, and it extends into 2019, am I eligible for the benefits at the
    2019 rate and an extra two weeks?

    You get the benefit rate and number of weeks in effect on the first day of a period of leave. When more than
    three months passes between days of Paid Family Leave, your next day or period of Paid Family Leave is
    considered a new claim under the law. This means you will need to file a new Request for Paid Family Leave
    and that you may be eligible for the increased benefits available should this day or period of Paid Family
    Leave begin in 2019.

Remember that, in all events, the amount of leave an employee can take is measured looking back 52 weeks from the date of most recent usage.  Here is an example of how to assess an employee’s leave rights in 2019 if the employee used all 8 weeks available in 2018:

  • I used all eight weeks of PFL in 2018. Can I take more PFL in 2019 if I experience another qualifying event?
    If you experience another qualifying event in 2019, you may be eligible for up to two weeks of additional leave.
    The maximum amount of leave in 2019 is 10 weeks in a 52 week period. If you took eight weeks of PFL in the last
    52 weeks, and have another qualifying event in 2019, you may be limited to two weeks at the new rate, since it is a
    rolling calendar. When it has been 52 weeks from your 2018 leave dates, you will accrue a new week of available PFL,
    up to another eight weeks.

MATRIX CAN HELP!

As state and federal programs proliferate, 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.

If you have questions, contact your Account Manager or ping@matrixcos.com.

Just when you thought you might be getting the hang of New York Paid Family Leave…

Posted on: March 12, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

The New York state legislature introduced a bill proposing to expand the coverage of paid leave.  See NY S 7723.  As with so much of the NY PFL law and regulations, the proposed bill – if enacted as is – will add more complications and conflicts.  Here’s what is in the bill:

PROVISION

COMMENTS – IF PASSED
Adds as a covered leave reason, matters related to being victim of domestic or sexual violence:

Medical attention, attending counseling sessions, seeking legal assistance, attendance in court proceedings, communicating with an attorney, relocating to a permanent or temporary residence.

This leave will create a category under Paid Family Leave for which the employee can obtain paid leave for personal medical needs.  An employee’s own medical condition is otherwise excluded from PFL coverage due to the availability of disability leave insurance
Available only for employee as victim, not for a family member as a victim.  Almost all existing laws granting leaves for victims of domestic violence and similar crimes provide time off if either the employee or a specified family member is the victim.  The limitation to the employee only is unusual and we might expect to see an amendment in this regard.

 

Employee can use only 2 weeks of paid PFL (out of the 8, 10, or 12 weeks of total PFL entitlement) for the new leave reason, but can also use 2 additional weeks unpaid, and the unpaid weeks have the same PFL protections. The bill provides an employee with 2 additional weeks of leave for matters related to domestic violence (but unpaid).  For example, in 2018 an employee could take 6 paid weeks to care for a family member, 2 paid weeks for matters relating to being a victim of domestic violence, and 2 weeks unpaid for the same – a total of 10 job-protected weeks off, although for all other reasons NY PFL is limited to 8 weeks in 2018.
Benefits are paid at 67% of employee’s average weekly wage, not to exceed 67% of state average weekly wage.  This is an odd provision – why not just follow the same phase-in of PFL percentage benefits over the next 3 years?

 

As you can see, the proposed bill would create some administration challenges, such as tracking the 2-week limitation of PFL for domestic violence reasons and the 2 additional weeks of unpaid but job-protected leave.  As drafted the bill will also require employers to pay different benefit percentages for early years based on leave reason until the benefit percentage for all leave reasons reaches 67% in 2021.  This bill, if passed, will go into effect on the January 1 following passage – so likely January 1, 2019. We hope for some amendments before passage!

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.