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New Leave Laws in New York and San Francisco (article)

States and local jurisdictions continue the trend of enacting leave laws.  Of particular note, New York enacted a statewide paid family leave law, while the City and County of San Francisco obligates employers to provide supplemental compensation to employees receiving paid leave benefits under California’s Paid Family Leave program.  Following are highlights of these laws.

 

New York Paid Family Leave

On April 4, 2015, Governor Andrew Cuomo signed a law (Ch. 54 (Section SS of S. 6406, L. 2015)) that will require New York private-sector employers, regardless of size, to provide family leave to their full and part-time employees following 26 consecutive weeks of employment.  The paid leave benefit is strictly funded by employees and takes effect January 1, 2018.  

 

Under this law, eligible employees may take up to 12 weeks of paid family leave for the following purposes:

  • To bond with a biological, adopted, or foster child during the first 12 months after the child’s birth (or placement for adoption or foster care with the employee);
  • To provide physical or psychological care to a family member, including a child, parent, grandparent, grandchild, spouse, or domestic partner, with a serious health condition; or
  • For qualifying exigencies (as defined under FMLA) when the employee’s spouse, domestic partner, child, or parent is called to active military duty. 

Because this new law builds on New York’s existing temporary disability insurance (TDI) law, employees who require leave to care for their own serious health condition would receive leave benefits in accordance with the TDI program. 

 

Benefit Amounts and Leave Accruals.  For 2018 through 2021, the law sets forth a staggered schedule for providing a certain amount of paid leave per 52-week calendar year, the amount of benefits to be paid during the leave, as well as a cap on leave benefit accruals.

 

Substitution of Leave.  Employers must allow but cannot require an individual use available accrued time such as vacation or personal leave.  An individual entitled to both TDI and paid family leave is limited to a total of 26 weeks of leave in any 52-week period.  The New York law runs concurrent with the FMLA.

 

Job Reinstatement and Benefits.  Like FMLA, the New York paid leave law guarantees that the individual return to the same or equivalent position, guarantees benefit accrual as of the date the leave begins.

 

During the leave period, health coverage must be continued on the same terms and conditions as if the individual were actively working.  In other words, the employer must continue to pay its share of health coverage.

 

Notice Obligations

Employers are required to conspicuously display information about the employee rights under the New York paid family leave law, as well as provide it to current employees who take paid family leave for more than seven consecutive days.

 

To the extent the leave is foreseeable, an employee is required to notify his/her employer at least 30 days in advance of taking the leave.  In addition, an employee is also required to provide the employer with written proof of the need for family leave from the recipient’s attending health care provider. Further, family leave recipients may be required to undergo a physical examination by a qualified health care provider for additional verification.

 

San Francisco’s Paid Parental Leave Ordinance

On April 21, 2016, Mayor Ed Lee signed the Paid Parental Leave Ordinance requiring most employers with employees in San Francisco to start bridging the gap between an employee's paid family leave benefit and the employee's regular compensation. This Ordinance provides for up to 6 weeks of supplemental compensation to employees receiving paid leave benefits under California’s Paid Family Leave program for purposes of newborn baby bonding. 

 

For purposes of this Ordinance, a covered employer is defined as a person who directly or indirectly (including through the services of a temporary services or staffing agency or similar entity) who employs or exercises control over the wages, hours, or working conditions of an employee.  The Ordinance does not apply to the City itself or any other government entity. 

 

An eligible employee, including a part-time or temporary employee, entitled to the leave is one who:

  1. Has worked for the covered employer at least 180 days prior to the beginning of the leave period;
  2. Works a minimum of 8 hours per week in San Francisco, of which, at least 40% of the total weekly hours are worked in San Francisco; and
  3. Is eligible to receive paid family leave compensation under the California Paid Family Leave program for new baby bonding.

Substitution of Leave.  Employers can require an employee to use up to two weeks of accrued, unused vacation for leave purposes. If the employee refuses to use vacation, then he/she would not be eligible for any supplemental compensation from the employer. Additionally, if the employee voluntarily terminates employment within 90 days of the end of the leave, the employee must agree, in writing, to reimburse the employer for the full amount of leave paid by the employer.

 

Coordination with Employer Policy.  An employer would not be required to provide supplemental compensation to an employee if its existing policy provides for a minimum of six weeks of fully paid parental leave within any 12-month period for new baby bonding, regardless of whether the paid leave includes California paid family leave benefits.

 

Workplace Posting.  Affected employers are required to post, in a conspicuous place at any workplace or job site where any employee works, a notice informing employees of their rights under the Ordinance. The Office of Labor Standards Enforcement has been directed to prepare the workplace posting by the Ordinance’s operative date of January 1, 2017.

 

Compliance Date.  The Ordinance provides for a phase-in compliance schedule based on the number of employees employed, as follows:

 

Number of Employees

Regularly Employed

Compliance Date Begins

≥ 50

January 1, 2017

≥ 35

July 1, 2017

≥ 20

January 1, 2018

 

Additional information about the San Francisco’s paid parental leave ordinance can be found on the OLSE’s webpage (http://sfgov.org/olse/paid-parental-leave-ordinance).

 

The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.     

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