New York has enacted legislation that, over the next several years, will phase in 12 weeks of paid family leave for all employees, as well as a $15 minimum wage in New York City and other parts of New York State.
PAID FAMILY LEAVE
The paid family leave provisions were enacted as an amendment to the temporary disability provisions of New York’s Workers’ Compensation Law. New York’s temporary disability law provides partial wage replacement during an absence due to an employee’s own (non-work-related) medical condition. Paid family leave complements temporary disability by providing partial wage replacement when an employee is absent from work to care for a family member.
Just like temporary disability in New York, paid family leave is an insurance-style program that will be funded entirely through a nominal weekly payroll deduction. Employers will not be required to fund paid family leave.
Benefit Amount and Length of Leave
Both the benefit amount and maximum length of paid family leave will gradually increase between 2018 and 2021. Beginning January 1, 2018, an eligible employee may take up to 8 weeks of paid family leave within any 52-week calendar period and will receive 50% of his or her average weekly wage or 50% of the state average weekly wage, whichever is lower. On January 1, 2019, it increases to 10 weeks of leave and 55% of the employee’s average weekly wage, not to exceed 55% of the state average weekly wage. On January 1, 2020, it increases to 10 weeks of leave and 60% of the employee’s average weekly wage, not to exceed 60% of the state average weekly wage. On January 1, 2021, it increases to 12 weeks of leave and 67% of the employee’s average weekly wage, not to exceed 67% of the state average weekly wage. The Superintendent of Financial Services has discretion to delay the increases that begin in 2019-21 by one or more calendar years.
Employees in New York currently are entitled to take 26 weeks of temporary disability leave. Any paid family leave taken by an employee will be subtracted from that employee’s temporary disability entitlement. Thus, employees who are eligible for both temporary disability benefits and paid family leave may not take more than a combined total of 26 weeks of leave during any 52-week calendar period for both temporary disability and paid family leave. Employees may not simultaneously collect benefits under both programs. Paid family leave will run concurrently with leave taken under the federal Family and Medical Leave Act.
Employers must allow, but may not require, employees to use accrued vacation and personal leave during a period of paid family leave and thus receive their full pay during the leave. The employer may request reimbursement from the employee of any paid family benefits received during that period.
Eligibility for Leave
Employees who have worked for an employer for 26 or more calendar weeks are eligible to take paid family leave for the following reasons:
(a) to participate in providing care, including physical or psychological care, for a family member of the employee made necessary by a serious health condition of the family member; or
(b) to bond with the employee's child during the first twelve months after the child's birth, or the first twelve months after the placement of the child for adoption or foster care with the employee; or
(c) because of any qualifying exigency as defined under the Family and Medical Leave Act 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 armed forces of the United States.
Employees generally are required to give at least 30 days’ notice of a foreseeable family leave, or as much notice as is practicable.
An employee returning from paid family leave must be restored to the position held by the employee when the leave commenced, or to a comparable position with comparable benefits, pay and other terms and conditions of employment.
Employee Benefits during Leave
Employees are not entitled to accrue seniority or other benefits during paid family leave. However, employers must maintain health benefits as if the employee had continued to work for the duration of the leave.
MINIMUM WAGE INCREASES
The new legislation provides for a gradual increase in the minimum wage throughout New York State, with the highest and fastest increase coming in New York City.
New York City
As of December 31, 2016, the minimum wage in New York City will increase to $10.50 for small employers (those with 10 or less employees) and $11.00 for larger employers. On December 31, 2017, those numbers will increase to $12.00 and $13.00, respectively. On December 31, 2018, they increase to $13.50 and $15.00. On December 31, 2019, the minimum wage for all New York City employees will be $15.00.
Nassau, Suffolk and Westchester Counties
The minimum wage will increase more gradually for these high cost of living counties close to New York City. The minimum wage in Nassau, Suffolk and Westchester Counties will increase to $10.00 on December 31, 2016 and will increase $1 each year until reaching $15.00 on December 31, 2021.
The Remainder of New York State
Minimum wage in the rest of New York State will increase to $9.70 on December 31, 2016 and will increase 70 cents each year until reaching $12.20 on December 31, 2020. Thereafter, the minimum wage outside of New York City, Nassau, Suffolk and Westchester Counties will continue to increase in accordance with a schedule to be determined by the Director of the Division of Budget in consultation with the Commissioner of Labor.
Tipped Employee Minimum Wage
The minimum wage for tipped employees in the hospitality industry will be the greater of (i) two-thirds of the local minimum wage and (ii) $7.50. An employee may be paid the tipped employee minimum wage only if the hourly wage, when the tips earned by the employee are added, is equal to or exceeds the local minimum wage for non-tipped employees.
Wage Increases Are Subject to Review
Beginning in 2019 the Director of the Division of Budget will conduct an analysis of the effect of the minimum wage increases in each region of the state to determine whether the scheduled increases should be temporarily suspended.