New York Releases Application and Certification Forms for Paid Family Leave

Posted on: October 18, 2017 0

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

They’re out!  The long-awaited, much anticipated application and certification forms for New York Paid Family Leave (NY PFL) have been posted on the NY PFL website HERE!  I have reviewed the forms quickly but there is much to absorb and ponder.  Such as, how many claims management systems will be able to handle an employee’s choice to answer the gender question with the third option, “Not designated/Other”?

As a reminder, NY PFL goes into effect on January 1, 2018, to provide leave to eligible New York employees for three reasons:  to bond with a new child, to care for a family member with a serious health condition, and to attend to matters necessitated by a family member’s active military duty.  Leave starts at 8 weeks in 2018 and tops off at 12 weeks in 2021 and subsequent years.  Similarly, the pay benefit starts at 50% and caps at 67% in 2021.  The benefit is funded by employee payroll contributions.

Watch this blog for further analysis down the road.  In the meantime, we want to share some basics.  Here are the new forms that have been released, and a few notes:

Applying for Paid Family Leave.  New York has provided this “cover page” to accompany each certification form.  It gives very basic instructions on the steps the employee must take to apply for NY PFL for each of the three leave reasons.

Request for Paid Family Leave (Form PFL-1).  This form is not posted as a stand-alone document.  Rather, it accompanies each of the certification forms on the New York website, so no matter the reason for the employee’s leave, the request form is at the same link.  The form is 4 pages and also has 2 pages of instructions (PFL-1 Instructions), which should prove helpful in answering many employee questions about NY PFL and the process.

Bonding Certification (Form PFL-2).  This short form (again, with instructions) provides very helpful direction on the documentation required to support a request for bonding leave, categorized for the birth mother, other parent, foster parent, and adoptive parent.

Release of Personal Health Information Under The Paid Family Leave Law (Form PFL-3 – Release of PHI).  Designed to accompany an employee’s request for leave to care for a family member, this form may be helpful in obtaining the medical information necessary for managing this type of leave.  As an observation, however, Matrix has not had trouble getting FMLA certifications for care of a family member without such a release.

Health Care Provider Certification For Care Of Family Member With Serious health condition (Form PFL-4).  Unlike California and a few other states, New York allows the employer/carrier to obtain the diagnosis of the family member’s health condition.  The form requires the provider to identify his/her credentials and specialty.  The form is 2 pages and the instructions are 1 page.

Military Qualifying Event (Form PFL-5).   Not much to say about this simple form.  It requires the employee to identify for which of the 8 reasons the employee needs leave, and directs the employee to attach supporting documentation.  A companion form (PFL-5-T) is a template for supporting the leave request when other documentation is not available for leave to meet with a 3rd party.

Early Observations – Some Concerns.  As noted above, we have not completed our analysis of these newly released forms, but we have already spotted some potential challenge areas.  For example:

  • Neither the Request for Paid Family Leave (PFL-1) nor the certification form for caring for a family member (PFL-4)
    provides a definition of “serious health condition” In fact, the provider is never required to certify that the employee’s
    family member has a serious health condition.
  • Also, neither the employee nor the provider is required to identify what kind of “care” the employee will be providing
    to the family member. We at Matrix know from experience that many employee requests under the similar FMLA
    provision do not meet the requirement for taking this kind of job-protected leave – and now it will be
    paid. A challenge to verify proper usage, to say the least.
  • The forms refer to the employer’s insurance carrier, but some employers will be self-funded. This could create
    a problem in getting forms properly completed and the correct information provided to the correct party.
    For example, as written, the form for release of a family member’s health information (PFL-3) authorizes release
    to the insurance carrier, but not to the self-funded employer.  While this can be corrected by including the employer’s
    name instead of the carrier’s name, we question how many times this will be done correctly on the
    first go-round.  Can you say “delay”?

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

MATRIX CAN HELP!

Matrix is honing processes, training teams, and taking other steps to be ready to administer New York Paid Family Leave starting January 1, 2018.  This is a natural extension of our leave, disability, and accommodation management services for 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 Releases First Wave of Paid Family Leave Forms

Posted on: October 6, 2017 0

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

 

In something of a stealth move, the New York Workers’ Compensation Board has released three forms for employers’ use in administering and complying with the Paid Family Leave Law that provides benefits starting January 1, 2018.  Those of us who check the NY PFL website daily and are signed up for news feeds received no word, but had to learn of the new forms through back channels.  The released forms include the following:

Employee Paid Family Leave Opt-Out of Benefits (PFL-Waiver, 9-17)

If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form.  Eligibility requires 26 weeks of 20 or more hours per week, or 175 days of work averaging fewer than 20 hours per week, with a covered employer.

This form contains some interesting news.  The employee’s waiver can be revoked by the employee or automatically because the employee has or will work more than the time needed for eligibility.  Per the regulations, the employee then has the obligation to catch up on contributions that would have been made during the eligibility period but for the waiver, but the regulations do not specify how the employer can recoup these amounts.  The form appears to authorize additional deductions from the employee’s pay to catch up for missed contributions:

I also understand if this waiver is revoked (either by me or by a change in my work schedule), my employer may take retroactive deductions for the period of time I was covered by this waiver, and this period of time counts towards my eligibility for paid family leave.  [Emphasis added.]

Employer’s Application for Voluntary Coverage (No Employee Contribution) (PFL-135, 9-17)

Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-135 (if no employee contribution is required).

Employer’s Application for Voluntary Coverage (Employee Contribution Required) (PFL-136, 9-17)

Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-136 (if they will be requiring an employee contribution).

The NY PFL regulations also calls for forms for employee use to request NY PFL, and certifications to support leave taken to care for a family member with a serious health condition, for military exigencies, and to bond with a new child due to birth or placement for adoption or foster care.  Employers and insurance carriers still working to get ready for the January 1, 2018, effective date have been begging the WCB for these other forms, which will be critical in getting the information the employer is entitled to for consideration of leave requests.  Employers and carriers are permitted to use their own forms, but clearly it is safest and easiest to use NY-sanctioned forms, especially at the beginning of this uncharted leave law.

The new forms, and additional forms as they are released, can be found at this link: https://www.ny.gov/new-york-state-paid-family-leave/paid-family-leave-employer-and-employee-forms-0

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

Hat tip to Marjory Robertson who provided early information about the new forms in an industry NY PFL call group!

 

Rhode Island Joins the Paid Sick and Safe Leave Bandwagon

Posted on: October 5, 2017 0

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

Rhode Island has joined the plethora of states that have passed paid sick and safe leave legislation for the state’s workers. The Rhode Island “Healthy and Safe Families Workplace Act” (H5413/S290) was signed into law by the Governor on September 28, 2017.

The basics. Effective July 1, 2018, Rhode Island employees of an employer with 18 or more employees in Rhode Island will earn one hour of paid leave time for every 35 hours worked, up to a maximum of 24 hours of accrued paid sick and safe leave in 2018, 32 hours in 2019, and 40 hours in 2020 and thereafter. Employees can carry over any unused, accrued paid time; however, the use of such time is still subject to the maximums (i.e. 24 hours in 2018, etc.). Accrued but unused sick and safe time is not payable to the employee upon termination.

Employees begin to accrue leave as of July 1, 2018, or their date of hire, whichever is later. While employees can begin to earn and accrue leave, employers can impose a waiting period of up to 90 days for new hires before they can take any accrued time. Temporary employees must wait up to 180 days to use any accrued leave (unless the employer agrees otherwise).

Leave reasons.  Employees may use sick and safe leave for any of the following reasons:

  • The employee’s own mental or physical illness, injury, or health condition; need for preventive care, diagnosis,
    or treatment of a mental or physical illness, injury, or health condition.
  • Care of a family member for the same reasons as the employee’s own needs.
  • When an employer’s business or the employee’s child’s childcare facility or school is closed
    due to a public health emergency.
  • When the employee or his or her family is a victim of domestic violence, sexual assault or stalking.

Covered relationships. “Family member” is broadly defined under the Act to include: child (biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or a son or daughter of an employee who stands in loco parentis to that child), parent, spouse or domestic partner, parent-in-law, grandparent, grandchild, sibling, care recipient, or member of the employee’s household. A “care recipient” is a person for whom the employee is responsible for providing or arranging health or safety related care.


Employee notice and documentation.
Employees are required to provide notice (in the means designated by the employer in its policy) where the need for leave is foreseeable. Employer may also require documentation (again, as long as the employer has a policy that says so) for leaves of 3 or more consecutive work days. The documentation requirement is quite limited and only allows for documentation that the leave is for a permissible purpose. The employer may not require documentation regarding the nature of the illness or details of the domestic violence, sexual assault or stalking.


Permitted employee discipline.
This Act also incorporates a few safeguards for employers:

  • An employer may discipline, up to and including termination of employment, an employee who is committing
    fraud or abuse by engaging in an activity that is not consistent with an allowable purpose for paid sick and
    safe leave;
  • An employer may also discipline an employee (again up to termination) who exhibits a clear pattern of taking
    leave just before or after a weekend, vacation, or holiday if the employee is unable to provide reasonable
    documentation that the leave has been taken for a permissible purpose.

 

Pings for Employers with Rhode Island Workers:

 Ensure that your pay practices are in order and ready to provide for the necessary accruals and usage accounting starting July 1, 2018

Draft a clear policy governing Rhode Island paid sick and safe leave. At a minimum, be sure to specify the means by which employees must give notice of the need for Rhode Island paid sick and safe leave (e.g., by email, other written request, verbal to supervisor, a call-in line, etc.) and your documentation requirements within the parameters of the law. Be sure your employees know about these policies by special notice, new hire notice, including in your employee handbook, and/or posting in areas in which workers congregate like lunch or break rooms.

 

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 – Final Regulations Out but No Surprises

Posted on: July 20, 2017 0

By Marti Cardi, VP-Product Compliance

& Gail Cohen, Director-Employment Law/Compliance

On July 19, the New York Workers’ Compensation Board issued its final regulations in support of the state’s Paid Family Leave law (NY PFL), which requires employers to provide paid leave benefits to employees starting January 1, 2018.  The final regulations follow a public comment period on the proposed rules issued on May 24, 2017.   The Board received 58 comments and has also issued an Assessment of Public Comment on Revised Proposed Regulations which provides a summary of the comments receive and the Board’s response.   Few substantive changes were made as a result of the comments, but the Assessment provides helpful clarifications on many provisions – even those for which it did not make any changes.

Here is a summary of the more noteworthy (or more interesting) changes and clarifications.

Coverage of employees outside the state of New York

Several comments requested the Board to change the regulations so that employees who do not live and work in New York are not covered by NY PFL.  The Board declined to make this change and clarified that an employee is entitled to NY PFL leave and benefits if some of his or her work is performed in New York and the employee is either: (1) based in New York; (2) controlled from New York; or (3) lives in New York.

In addition, the Board received a request to amend the regulations to allow employers to include non-New York employees in their coverage under NY PFL .  The Board pointed out it does not have authority to regulate employees or insurance outside the state of New York and declined to amend the regulations per this request.

Multiple or extended leaves under NY PFL and other programs

The Board confirmed that an employee may be able to take leave in 2017 under company policies (or the FMLA) and then be entitled to leave and benefits under NY PFL for the same qualifying event in 2018.  Examples:

  • An employee who receives a new child on August 1, 2017, could take bonding leave under company policies

(which may provide a pay benefit) and/or FMLA in 2017, then take up to 8 weeks of bonding leave under NY PFL any time from January 1 through July 31 in 2018.

  • An employee could take up to 12 weeks of FMLA leave in late 2017 to care for a covered family member

with a serious health condition, then take up to 8 weeks of leave starting January 1, 2018, to continue care for the same family member.

Fortunately, this anomaly will only occur for certain leaves in 2017 and 2018, and not for subsequent years.

Notice of payroll deductions to employees

There is no requirement in either the statute or the regulations for employers to give notice to their employees of NY PFL payroll deductions.  However, Matrix recommends that employers should, in fact, provide notice of the employees’ contributions and other aspects of NY PFL so that employees have the facts and appropriate expectations.  Matrix has prepared a sample introductory communication to employees for consideration, and will work with clients to craft additional messaging in Q4 2017. Employers should consult with employment counsel to ensure employee communications are appropriate to the law as well as their own corporate policies and practice.

Military exigency leave

NY PFL provides leave to care for several defined family members with a serious health condition, including the employee’s child, spouse, domestic partner, parent, grandchild, and grandparent.  However, the Board has confirmed military exigency leave under NY PFL (which adopts the provisions of the FMLA for this leave) is NOT available for leave necessitated by the military service of a grandparent or grandchild.

Leave and benefits under both New York disability and paid family leave laws

The Board received inquiry about an employee’s ability to receive both disability (DBL) and PFL benefits for the same birth of a child.  The Board pointed out that the regulations clearly state an employee can collect both disability benefits and paid family leave in the post-partum period, but not at the same time.  Thus, a new mother could receive disability benefits for some period of time following giving birth, and then take paid family leave within the one year period following the date of birth.

The Board did not address the possibility of using NY PFL for the week following birth during the 7-day waiting period for disability benefits, then switch to disability benefits followed with more paid family leave for bonding.  There appears to be nothing in the statute or the regulations that would prohibit this, since NY PFL can be taken in increments of one day or more.

The NY disability and PFL laws limit an employee’s total benefits under both programs to 26 weeks in a 52-week period.  The Board clarified that because the employee’s use of benefits is calculated retroactively backward from each day of usage, this will bridge the 52-week period back into year 2017 during 2018.

Employee waiver of NY PFL coverage and deductions

NY PFL allows an employee who expects that his/her term of employment will be less than 26 weeks for employees working 20 hours per week or more (or 175 work days for employees working fewer than 20 hours per week) can elect to waive coverage and payroll deductions.  In response to a request for clarification, the Board has amended the regulations such that employers MUST provide notice to employees of their right to waive coverage.  The waiver must be in writing and if the employee’s term of employment exceeds 26 weeks or 175 work days, the employer must start payroll deductions and can collect back premiums from the employee.  The regulations do not address how the employer is allowed to collect the back premiums, but other provisions make it unlikely that additional deductions from the employee’s paycheck would be permissible.

Employers will not be permitted to automatically waive PFL coverage for short-term workers.  According to the Board, it is the employee’s election to make.

Notice to employee of completed pre-filed claim

The draft regulations required carriers to provide employees who pre-filed a claim a confirmation of receipt of the completed claim within one business day.  Due to objections about the practicality of processing and assessing a claim for completeness within one day, the regulations have been changed to allow a carrier or self-insured employer three business days to send the confirmation.  The payment must still be made within 18 days of receipt of the complete claim.

Inconsistency between carrier’s and employer’s determination of NY PFL benefits and leave rights

The Board received a comment recognizing that “there could be a disconnect between the carrier’s determination and the employer’s determination about whether or not leave should be denied.”   I’m quoting here because I’m not sure how else to explain this issue:  The Board’s less-than-satisfactory response is, “Because the employer does not decide whether to approve or deny a paid family leave claim, and if the employer suspects fraud it is free to contact the carrier, no change to the regulations has been made.”  The Board did not address the question whether the employer would be acting properly if it chooses to use the carrier’s benefits determination as a proxy for the leave determination, thus eliminating the possibility of such inconsistency.

Rights of employees with more than one job

An employee working simultaneously for more than one New York employer will have NY PFL contributions deducted from their pay from each employer.  The Board confirmed that yes, an employee can take NY PFL leave and receive benefits from multiple employers at the same time for the same leave reason.  The Board acknowledged that this might result in the employee receiving total benefits in excess of the statutory cap available from employment with a single employer.  However, the Board confirmed that the total number of weeks of NY PFL leave and benefits available to an employee in a 52-week period is still subject to the 8-week limit in 2018 (increasing to 12 weeks by 2021).

WHAT IS MATRIX DOING NOW?

Whew!  That is about all I can bring to light in the 24-ish hours since the final regulations were published.  But we are FAR FROM DONE!

In June Matrix presented webinars, FAQs, and other materials to help employers and brokers understand and prepare for New York Paid Family Leave.  Over the coming days and weeks, we will use the final regulations and comments to update all materials, and develop additional ones as warranted. In August we will host another round of webinars.

In the meantime you can always learn more about the law as follows:

  • Check out these prior blog posts (but remember some information has changed due to revisions to the

regulations, including those discussed above):

May 2017

March 2017

April 2016

great introductory primer).

  • Ask a question OR sign up for our NY PFL Tip-Of-The-Week by emailing nypfl@rsli.com.

 

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.