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).
During calendar year 2018, eligible New York workers could take up to eight weeks of paid family leave. That increased to ten weeks in 2019. In 2021, it will increase to twelve weeks. See id. at § 204(2). The amount of benefits will also increase. In 2019, workers on leave are entitled to fifty-five percent of either their average weekly wage or the New York State Average Weekly Wage (NYSAWW), whichever is less. This will increase to sixty-seven percent by 2021.
The FMLA currently only applies to employers with fifty or more employees, and employees who have worked for their employer for at least one year. 29 U.S.C. §§ 2611(2), (4). It allows qualifying employees to take up to twelve weeks of unpaid leave per year for specific purposes, such as the birth or adoption of a child, a family member’s serious health condition, or the employee’s serious health condition. Id. at § 2612(a)(1). Members of Congress introduced the Family and Medical Insurance Leave (FAMILY) Act in both houses in February 2019, as H.R. 1185 and S. 463. This bill would implement paid family leave nationwide, using an insurance-based system similar to New York’s law.
Phillips & Associates’ team of knowledgeable and skilled employment attorneys advocates for the rights of employees, former employees, and job seekers in New York City. Please contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to see how we can help you.