Monday, March 11, 2019

Federal vs. New York family and medical leave laws – Part 2

The federal Family and Medical Leave Act provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons.

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).

The comparison chart below continues our review of federal vs. New York family and medical leave laws regarding the type of leave and criteria for a serious health condition/serious injury or illness.



Family and Medical Leave in New York

FEDERAL ELEMENTS
STATE ELEMENTS
Type of Leave
Unpaid leave for:
·         birth of employee’s newborn child;
·         placement of child with employee for adoption or foster care;
·         providing care for employee's parent, child or spouse with a serious health condition;
·         employee’s own serious health condition;
·         any qualifying exigency when employee’s spouse, child or parent is on active duty or is notified of impending call or order to active duty in Armed Forces; or
·         caring for a spouse, child, parent or next of kin who is a covered service member with a serious injury or illness.
Pregnancy leave: Employers cannot discriminate on the basis of sex and must treat disability arising from pregnancy in the same manner as other disabilities. New York has a temporary disability insurance program that requires employers to provide short-term disability insurance for their employees. Employers are required to provide partial wage replacement for up to 26 weeks to employees who are temporarily unable to work due to disability. Pregnancy is considered a disability under the program. 
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:
·         unpaid leave to donate blood off of the employer’s premises; or
·         blood donation during work hours without use of any accumulated leave time or other paid time off.
Bone marrow donation leave: Unpaid leave to undergo a medical procedure to donate bone marrow.
Military spouse leave: Unpaid leave during the time the military member is on leave from deployment.
Paid family leave (effective Jan. 1, 2018): An employee may receive paid family leave benefits for the following reasons:
·         to provide care to a family member with a serious health condition;
·         to bond with the employee's child during the first 12 months after the child's birth, or after the placement of the child for adoption or foster care with the employee; or
·         for any qualifying exigency as interpreted under the federal FMLA arising out of the fact that the spouse, domestic partner, child or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the U.S. Armed Forces.
Paid family leave benefits will be funded through employee paycheck deductions. Employers are not responsible for contributing to or funding paid family leave benefits, but may choose to do so. Employers may begin collecting employee contributions as of July 1, 2017.
Serious Health Condition/Serious Injury or Illness
Serious Health Condition:
Illness, injury, impairment or physical or mental condition involving incapacity or treatment connected with inpatient care in hospital, hospice or residential medical care facility, or continuing treatment by a healthcare provider involving a period of incapacity due to:
·         a health condition lasting more than three consecutive full calendar days and involving a certain level of treatment;
·         a chronic serious health condition or a permanent or long-term condition for which treatment may be ineffective;
·         absences to receive multiple treatments (including recovery periods) for a restorative surgery or for a condition that if left untreated likely would result in incapacity of more than three days; or
·         any incapacity related to pregnancy or for prenatal care.
Serious Injury or Illness:
In the case of a member of the Armed Forces, including a member of the National Guard or Reserves, an injury or illness incurred by the member in line of duty on active duty in the Armed Forces (or which existed before the beginning of active duty and was aggravated by service in the line of duty on active duty) that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.
For a veteran of the Armed Forces, including a veteran of the National Guard or Reserves, an injury or illness incurred by the member in the line of duty on active duty in the Armed Forces (or which existed before the beginning of active duty and was aggravated by service in the line of duty on active duty) and that manifested itself either before or after the member became a veteran.
Paid family leave (effective Jan. 1, 2018): Serious health condition means an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice or residential healthcare facility, continuing treatment or continuing supervision by a healthcare provider.

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.

Read about other federal and state areas of comparison in Federal vs. New York Family & Medical Leave Laws – Part 1. These comparison charts are provided for general informational purposes only. They are 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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