Monday, March 4, 2019

Federal vs. New York family and medical leave laws – Part 1

The federal Family and Medical Leave Act provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. For example, under the FMLA, eligible employees may take leave for their own serious health conditions, for the serious health conditions of family members, to bond with newborns or newly adopted children or for certain military family reasons.

In addition to providing eligible employees with an entitlement to leave, the FMLA requires that employers maintain employees’ health benefits during leave and restore employees to their same or equivalent job positions after leave ends. The FMLA also sets requirements for notices, by both the employee and the employer, and provides employers with the right to require certification of the need for FMLA leave in certain circumstances.



In addition to the federal FMLA, New York has laws regarding pregnancy leave, adoptive parents leave, blood donation leave, bone marrow donation leave, military spouse leave and paid family leave (effective Jan. 1, 2018). Review the comparison chart below to learn more regarding the types of employers covered, employees eligible and leave amount.

Family and Medical Leave in New York

FEDERAL ELEMENTS
STATE ELEMENTS
Employers Covered
Private employers with 50 or more employees in at least 20 weeks of the current or preceding year.
Public agencies, including state, local and federal employers.
Local education agencies covered under special provisions.
In addition to the federal FMLA, New York has laws regarding pregnancy leave, adoptive parents leave, blood donation leave, bone marrow donation leave, military spouse leave and paid family leave (effective Jan. 1, 2018).
Pregnancy leave: Employers with four or more employees.
Adoptive parents leave: All employers.
Blood donation leave: Employers with at least 20 employees at one or more worksites.
Bone marrow donation leave: Employers with at least 20 employees at one or more worksites.
Military spouse leave: Employers with at least 20 employees at one or more worksites.
Paid family leave (effective Jan. 1, 2018): All employers. Paid family coverage will typically be added to the employer’s existing disability insurance policy.
Employees Eligible
Worked for employer for at least 12 months (which need not be consecutive); worked at least 1,250 hours for employer during 12 months preceding leave and employed at a worksite with 50 or more employees within 75 miles of worksite.
Pregnancy leave: Pregnant employees.
Adoptive parents leave: Employees who are adoptive parents following the commencement of the parent-child relationship (unless the child has reached school age or, in the case of a hard-to-place or handicapped child, has reached age 18).
Blood donation leave: Employees who work an average of 20 or more hours per week. Excludes independent contractors.
Bone marrow donation leave: Employees who work an average of 20 or more hours per week. Excludes independent contractors.
Military spouse leave: Employees who work an average of 20 or more hours per week and who are the spouse of a member of the U.S. Armed Forces, National Guard or Reserves who has been deployed during a period of military conflict to a combat theater or combat zone of operations. Excludes independent contractors.
Paid family leave (effective Jan. 1, 2018): An employee who works 20 hours or more per week is eligible for paid family leave benefits if the employee works for a covered employer for 26 or more consecutive weeks. A part-time employee (an employee who works fewer than 20 hours per week) is eligible for paid family leave after he or she has worked for a covered employer for 175 days.
Leave Amount
Generally, up to a total of 12 weeks during a 12-month period.
Up to 26 weeks during a single 12-month period to care for spouse, child, parent or next of kin who is a covered service member with a serious injury or illness.
However, leave for birth, adoption, foster care, care for a parent with a serious health condition or care for a covered service member with a serious injury or illness must be shared by spouses working for same employer.
Pregnancy leave: Employers cannot discriminate on the basis of sex and must treat disability arising from pregnancy in the same manner as other disabilities.
Adoptive parents leave: Employers that permit employees to take leaves of absence upon the birth of a child must permit an adoptive parent, following commencement of parent-child relationship, the same leave upon the same terms (unless the child has reached school age or, in the case of a hard-to-place or handicapped child, has reached age 18).
Blood donation leave: At the employer’s option, either:
·         Three hours of leave in any 12-month period for an employee to donate blood; or
·         Blood donation during work hours, without use of accumulated leave time, at least two times per year at a convenient time and place set by the employer, including allowing the employee to participate in a blood drive at the employer’s site.
Bone marrow donation leave: The total length of each leave is determined by the employee's physician, but may not exceed 24 work hours for each bone marrow donation, unless the employer agrees otherwise. There is no limit to how frequently an employee may take bone marrow donation leave.
Military spouse leave: Up to 10 days of leave.
Paid family leave (effective Jan. 1, 2018): Paid family leave benefits will be phased in over a four-year period. In 2018, eligible employees may receive up to eight weeks of paid family leave at 50% of their average weekly wages. When fully implemented in 2021, eligible employees may receive up to 12 weeks of paid family leave at 67% of their average weekly wages. 

Please note that the information in the above chart focuses on statewide laws. Employers must be aware that numerous cities across the country (including New York City) have enacted local ordinances that mandate employers provide paid sick leave to employees. An employer located in a city with a paid sick leave law must comply with the local ordinance and statewide law, if applicable.

This comparison chart is provided for general informational purposes only. It is not intended to be exhaustive, nor should any discussion or opinions be construed as legal advice. If you have any questions or would like to begin talking to an employee benefits consultant, please get in touch by email or by calling (800) 388-1963.



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