What constitutes paid family leave and whether employers should be required to offer it has been a widely debated topic for decades. Recently, New York State has taken a step forward in this issue by granting employees new rights regarding family leave. As of the first day of the new year, the laws outlining employees’ eligibility for paid family leave have been improved in New York State to make it one of the most generous plans in the nation. The program for New York State will be phased in over the course of the next four years, beginning with 8 weeks of paid leave and eventually growing to 12 weeks of paid leave by 2021.
Currently under federal law, the Family and Medical Leave Act of 1993 (FMLA) already provided employees with 12 weeks of protected leave, which does not allow an employer to take away the employee’s job by firing or demoting him or her for taking the leave. However, the FMLA does not require that this leave be paid which tends to result in many people being unable to afford to take advantage of it. Additionally, the FMLA only applies to employers who have more than 50 employees and accounts for just more than half of the workforce.
New York State’s law fills in the gap by requiring that most private employers provide employees with this paid family leave. Employees can use this job-protected, paid leave for three reasons:
- After having given birth and/or to bond with a newly born, adopted, or fostered child
- To care for a severely ill, close relative
- To assist loved ones of active military members that are deployed abroad
Bonding time with a new child begins after birth, adoption, or foster placement and may be taken immediately after, or in full-day increments during the first 12 months following the birth, adoption or placement. Those who take the leave to care for an ill relative may do so for a spouse, domestic partner, child, stepchild, parent, stepparent, parent-in-law, grandparent, or grandchild. Caring for a family member with a serious illness includes those who require inpatient care in a hospital, hospice, or residential health care facility or who are in need of continuing treatment or supervision by a health care provider.
To fulfill this “phase-in” plan the state established, the average amount paid per week of family leave will increase by a set amount each year until 2021. The amounts are capped, however, at a percentage of the state average weekly wage each year. This means that for an employee who has a 50% average weekly wage of more than 50% of the state average weekly wage, the employee will be paid 50% of the state average weekly wage rather than 50% of his or her own weekly income. The four-year schedule is as follows:
- In 2018, employees will be eligible to be paid 50% of their average weekly wage or up to 50% of the state average weekly wage for 8 weeks
- In 2019, employees will be eligible to be paid 55% of their average weekly wage or up to 55% of the state average weekly wage for 10 weeks
- In 2020, employees will be eligible to be paid 60% of their average weekly wage or up to 60% of the state average weekly wage, also for 10 weeks
- By 2021, employees will be eligible to be paid 67% of their average weekly wage or up to 67% of the state average weekly wage for 12 weeks
Asserting your rights in the workplace can be an intimidating thing to do, but the law protects those taking paid family leave. If you have reason to believe you have been discriminated against by your employer for taking advantage of New York’s new paid family leave plan, it is important to contact an experienced attorney. Steven Mitchell Sack is an experienced employment lawyer who has spent his career of more than 37 years working to ensure the rights of people in the workplace. For more information or to schedule a consultation, call (917) 371-8000 or email sms@stevensack.com.
