New York has received a lot of attention lately for its expansive paid family leave program. The attention makes sense. Paid family leave is a significant issue for both employers and employees. However, the legislation does not go into effect until 2018 and, while it’s interesting to think about what is new, it’s also important to remember the leave laws that employers must already comply with on a daily basis.
So, as an employer, what do you need to consider now if an employee requests family leave?
Is the employee FMLA eligible?
Among other things, the federal Family and Medical Leave Act (“FMLA”) entitles eligible employees to take twelve work-weeks of unpaid, job-protected leave in a twelve-month period, with continuation of group health insurance coverage, to care for the employee’s spouse, child, or parent who has a serious health condition, or for the birth and care of a newborn child.
In the private sector, the FMLA applies to employers that employ fifty or more employees. An employee who works for a covered employer will be eligible for FMLA if he/she (1) has worked for the employer for at least twelve months as of the date the FMLA leave is to start; (2) has at least 1,250 hours of service for the employer during the twelve-month period immediately before the date the FMLA leave is to start; and (3) works at a location where the employer employs at least fifty employees within seventy-five miles.
Does the employee work in a state with its own family leave law?
Several states have family leave laws that are more generous than the FMLA (e.g., easier to qualify as eligible, more expansive definitions of family member, more protected time off). Although there is currently no family leave law in effect in New York, neighboring states New Jersey and Connecticut both have such legislation in effect.
When it becomes effective on January 1, 2018, New York’s family leave law will apply to employers not covered by the FMLA and will provide leave to many employees who would not otherwise be FMLA eligible.
When applicable, both the federal and state laws must be considered and complied with. Often time off will run concurrently under both federal and state law, but it is sometimes possible to qualify for leave under one of the laws and not the other.
Does the employee work in a state or city with paid sick time requirements?
The number of paid sick time laws has greatly increased in the last year. While multiple states, including Connecticut, have paid sick time laws in effect, the majority of paid sick time laws have been enacted locally by cities, such as New York City, Newark, and Philadelphia.
In New York City, employers with five or more employees must provide their employees with up to forty hours of paid sick time per year. Employees can use their paid sick time for the care of a family member who needs medical diagnosis, care, or treatment of an illness, injury, or health condition, or who needs preventive medical care. A family member includes a child, grandchild, spouse, domestic partner, parent, grandparent, child or parent of an employee’s spouse or domestic partner, and sibling (including a half, adopted, or step sibling).
What to do now?
Once an employer has identified the family leave laws applicable to its business, it must ensure that the company’s policies and procedures are complete and compliant with each. Employers must also consider the interplay between the different laws, which can be complex.
Employers must also comply with any applicable notice requirements. For instance, the FMLA mandates a posting, and requires an employer to provide a general notice concerning the FMLA in its employee handbook (or other written material about leave and benefits), or in a notice distributed to new employees upon hire. New York City employers must give a Notice of Employee Rights concerning Paid Sick Time to new employees when they begin employment. The Notice must be given in English and in the employee’s primary language (if the city has made the translation available on its website).
Then, when a request for family leave comes in, employers should be prepared to consider, determine and properly track an employee’s right to time off under each applicable leave law. While setting up a system to properly manage this process can be challenging initially, it is critical in order to ensure legal compliance and avoid the risk of unfavorable government audits and/or lawsuits.
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