Paid Family Leave Category Archives — New York Employment Attorney Blog Published by New York Employment Lawyers

May 19, 2020

New York City Laws on Caregiver Discrimination During the Coronavirus Pandemic

The global coronavirus pandemic has hit New York City particularly hard. Many people have concerns not only about their own health, but the health of family members who require care. New York City employment discrimination laws protected workers with caregiver responsibilities before the coronavirus arrived. Quarantine and isolation have added a new dimension to the concept of a “caregiver.” Laws passed by the federal and state governments to address problems caused by the pandemic may offer additional protections against discrimination and retaliation based on an employee’s caregiving responsibilities.

What Is Caregiver Discrimination?

The New York City Human Rights Law (NYCHRL) prohibits discrimination by employers on the basis of “caregiver status.” It defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” The term “care recipient” can refer to anyone living in the caregiver’s home; or a “covered relative” like a parent, spouse, sibling, child, grandchild, or grandparent, whether or not they live with the caregiver. In either case, the care recipient must need the caregiver’s assistance with “medical care or to meet the needs of daily living.” Id.

The NYCHRL does not define the term “direct and ongoing care,” and it does not appear that any court has ruled on its specific meaning. A plain-language interpretation suggests that it means care that requires a substantial amount of the caregiver’s time and attention. This could therefore include:
– The caregiver’s minor child, who resides with the caregiver;
– The caregiver’s minor child who resides elsewhere, but needs regular care from the caregiver;
– A person who lives with the caregiver, regardless of whether they are related; or
– A relative who does not reside with the caregiver.

April 28, 2020

Enforcement of Federal Paid Sick Leave and Expanded Family and Medical Leave Laws in New York

by Phillips & Associates

Congress enacted the first federal paid sick leave law in the nation’s history in March in response to the global COVID-19 pandemic. The Families First Coronavirus Response Act (FFCRA) creates a new system of paid sick leave and expands unpaid leave under the Family and Medical Leave Act (FMLA). For a New York City employment attorney, of course, one of the first questions about any new law is how to enforce it. The FFCRA relies on existing laws’ enforcement mechanisms, and new regulations from the Department of Labor (DOL) leave some holes in workers’ ability to enforce their rights.

Paid Sick Leave and Expanded Family and Medical Leave

Two divisions of the FFCRA address leave for employees during the pandemic: The Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The benefits offered by these laws are restricted, however, based on an employer’s number of employees. Employers with five hundred or more employees are not included in either law’s definition of “employer.” Employers with fewer than fifty employees can claim an exemption from both paid sick leave and expanded family and medical leave if they can show that providing leave would threaten the economic viability of their business.

Enforcing the EPSLA

The EPSLA uses the enforcement mechanisms of the Fair Labor Standards Act (FLSA). Covered employers who fail to provide paid sick leave as required by the EPSLA commit a minimum wage violation under the FLSA. Aggrieved employees may recover their unpaid wages as damages, plus “an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). They may also obtain equitable relief, including injunctions against further violations. See id. at § 217.

April 24, 2020

Labor Department Issues Rule on Exemptions from Federal Paid Sick Leave Law

by Phillips & Associates

The Families First Coronavirus Response Act (FFCRA), which became law on March 18, 2020, creates a temporary system of paid sick leave for workers in New York City and around the country. It also temporarily expands the unpaid leave provisions of the Family and Medical Leave Act (FMLA). The purpose of these measures is to provide support for workers affected by the COVID-19 pandemic. The law makes multiple exceptions, however, for both large and small employers. Businesses with five hundred or more employees, which comprise a sizable plurality of employers in the country, are not covered by these provisions at all. Employers with fewer than fifty employees may have an exemption under the FFCRA. A new temporary rule published by the U.S. Department of Labor (DOL) explains how small employers can claim this exemption.

Paid Sick Leave and Expanded Family and Medical Leave

Division C of the FFCRA, the Emergency Family and Medical Leave Expansion Act (EFMLEA), provides an expansion of the right to unpaid leave under the FMLA. Division E, the Emergency Paid Sick Leave Act (EPSLA), provides paid sick leave at the national level. These two sections provide combinations of paid and unpaid leave with job protection for eligible employees. The provisions will remain in effect until December 31, 2020.

Exemptions from the EPSLA and the EFMLEA

Both laws give the DOL authority to exempt employers with fewer than fifty employees from these requirements if they “would jeopardize the viability of the business as a going concern.” See Pub. L. 116-127 §§ 3102(b), 5111(2). In its discussion of the new rule, the DOL notes that, according to the U.S. Census Bureau’s 2017 Statistics of U.S. Businesses, only 221,454 private businesses, those with fifty or more but fewer than five hundred employees, would not have been eligible for the “viability” exemption. This comprises about four percent of all private employers covered by the EPSLA and EFMLEA.

April 2, 2020

New York State Enacts Paid Sick Leave Law to Assist Workers Impacted by Coronavirus

by Phillips & Associates

The global coronavirus pandemic has had an immense impact on the economy in a very short period of time. Many workers who have not yet shown the symptoms of the disease known as COVID-19 find themselves needing to self-quarantine because of possible exposure. Those who do show symptoms must also quarantine themselves and seek medical treatment. Several new laws offer assistance to workers affected by the pandemic. The federal government passed a bill in March 2020 establishing a temporary system of paid sick leave for many workers. New York State also passed a bill in March providing paid sick leave and expanding access to the state’s Paid Family Leave program.

Overlap of State and Federal Law

The bill passed by the U.S. Congress, entitled the Families First Coronavirus Response Act, creates a temporary system for paid sick leave that expires at the end of 2020, unless Congress acts to renew or modify it. New York State’s new law does not have an expiration date.

The New York law states that if a worker is entitled to paid leave under both state and federal law, then they are only eligible for state benefits under state law to the extent that they exceed the amount of benefits available under federal law. In other words, if federal law requires an employer to pay a particular employee $100 per day, and state law requires them to pay $120 per day, state law only covers the $20 excess amount.

April 1, 2020

What the Families First Coronavirus Response Act Means for Workers in New York City

by Phillips & Associates

The global coronavirus pandemic has led to major economic disruptions across the country. As more and more people are urged — or required — to remain at home, and businesses deemed “non-essential” are ordered to reduce or cease operations, many people find themselves out of work or unable to get to their jobs. People who must quarantine themselves also cannot get to work. Both New York State and New York City have taken steps to help people affected by the crisis. The federal government has also acted, passing the Families First Coronavirus Response Act (FFCRA) in mid-March 2020.

Three of the bill’s major sections could offer assistance to workers in New York City:
– Division C, the Emergency Family and Medical Leave Expansion Act, does as its name suggests and temporarily expands the unpaid leave provisions of the Family and Medical Leave Act (FMLA).
– Division D, the Emergency Unemployment Insurance Stabilization and Access Act of 2020, provides additional grants for state unemployment insurance programs.
– Division E, the Emergency Paid Sick Leave Act, creates a temporary federal mandate for paid sick leave for certain employers.

Unemployment Insurance

Each state maintains an insurance fund for unemployment compensation. Employers pay into the fund as part of their payroll taxes. The federal government supplements the funds through grants. The unemployment provisions of the FFCRA authorize greater expenditures on state programs. Some of these extend to the end of fiscal year 2020, or September 30, while others continue to the end of the calendar year.

March 11, 2020

New York City Still Struggles with Pregnancy Discrimination, Despite Progress

by Phillips & Associates

Pregnancy discrimination remains a serious problem throughout the country, despite multiple laws intended to prevent and penalize such practices. New York City pregnancy discrimination attorneys can draw upon federal laws that prohibit discrimination based on pregnancy and childbirth, and municipal laws that require a wide range of accommodations in the workplace. Federal law provides family leave for new parents, although it is unpaid and limited in scope despite its lofty ambitions. New York State makes up some of the difference with a new paid family leave program.

Pregnancy Discrimination vs. Accommodations for Pregnancy

The term “pregnancy discrimination” can encompass both:

1. Adverse actions taken against an employee because of pregnancy, childbirth, or a medical condition associated with either; and
2. Failure to provide reasonable accommodations for pregnant workers and workers who have recently had a child.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, includes discrimination based on “pregnancy, childbirth, or related medical conditions” in its definition of sex discrimination. 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). The New York State Human Rights Law (NYSHRL) prohibits discrimination on the basis of “familial status,” and includes pregnancy, childbirth, and the acquisition of custody of a minor child in its definition of that term. N.Y. Exec. L. §§ 292(26)(a), 296(1)(a). Title VII makes no mention of reasonable accommodations for pregnancy or childbirth.

June 27, 2019

New York’s Paid Family Leave Allows Either or Both Parents to Take Time to Care for Newborns

by Phillips & Associates

In many parts of the U.S., the availability of paid family leave to care for a newborn is entirely dependent on one’s employer. Ensuring that employers with family leave policies apply them fairly is often a matter of enforcing laws against discrimination on the basis of factors like pregnancy or gender. New York City discrimination attorneys do not have to go that far much of the time thanks to the state’s paid family leave law, which took effect in 2018. Even if an employee is not eligible for leave under the new state law, New York City’s prohibition on caregiver discrimination may offer protection against adverse employment actions. Both state and city law make no distinction based on gender—mothers and fathers alike can claim family leave and caregiver status. A recent settlement in a lawsuit against a New York City-based financial firm suggest that the country may soon be ready to follow in the city’s footsteps.

The New York City Human Rights Law (NYCHRL) defines a “caregiver” as someone who is responsible for supporting a minor child or certain other individuals. This obviously includes parents of children under the age of eighteen. The law prohibits employers from discriminating against employees and job applicants on the basis of caregiver status. It does not necessarily require that employers provide accommodations for employees with caregiver responsibilities, but it still provides workers with important protections.

The paid family leave law applies to both full-time and part-time workers once they have worked for a minimum period of time. They must start over with regard to minimum days or weeks worked when they start working for a new employer. Starting in 2019, the law allows eligible employees to take up to ten weeks of leave to bond with a new baby. An individual must take advantage of this program within twelve months of the child’s birth. It expressly applies to any new parent, regardless of gender. Both of a child’s parents may take paid family leave if they meet the eligibility criteria. Benefits are payable through employers’ disability insurance.
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April 30, 2019

Understanding Paid Family Leave in New York

by Phillips & Associates

The United States is one of the only countries in the world with no provisions for paid family leave at the national level. The Family and Medical Leave Act (FMLA) provides for unpaid leave nationwide, but it only applies to qualifying employees of covered employers. New York is one of only a handful of states or territories in the U.S. to have enacted laws requiring paid family leave. When New York’s Paid Family Leave Act (PFLA) took effect in 2018, this state joined California, New Jersey, and Rhode Island. The District of Columbia and the State of Washington have also enacted paid family leave laws, which are scheduled to take effect in 2020. New York City employment attorneys may be accustomed to handling claims of discrimination and retaliation under the FMLA. The PFLA also contains provisions protecting employees who exercise their rights to paid leave.

“Family leave” generally refers to time away from work to care for a newborn or newly-adopted child, to care for a family member with a serious illness or injury, and to provide certain other forms of care for family members. Under laws mandating family leave, employers must hold a person’s job for the approved leave period, and they typically must continue to provide benefits like health insurance. Employers are prohibited from discriminating or retaliating against an employee who uses earned leave time.

Since the FMLA does not require employers to pay their employees while they are on leave, the statute does not have to address issues of funding. A common objection to mandatory paid family leave is that it is unfair to employers to require them to pay employees for time when they are not working. The PFLA makes paid family leave part of the state’s disability insurance program, which is governed by the New York Workers’ Compensation Law. Paid family leave in New York is therefore only available to employees who are eligible for benefits from the state insurance fund. See N.Y. Work. Comp. L. § 76(2).
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