So here is Week 3 of Bond’s New York Paid Family Leave (“PFL”) Q&As. This week we are focusing on which employers are and are not covered. We also answer your questions about what certain exempt employers (i.e., those who are not required to have PFL coverage) must do in order to opt in for voluntary PFL coverage. In fact, certain exempt employers have an obligation to make a decision by December 1, 2017, as to whether to opt in for PFL coverage and will be required to report their decision to the NYS Workers Compensation Board (“WCB”).
Question: Are there any employers in New York that are not covered by PFL?
Answer: Yes. In light of the fact that PFL is intended to piggy back onto the Disability Benefits Law (“DBL”), it applies to any entity considered a covered employer under DBL. While all private sector employers in New York that have one or more employees are subject to and have to comply with DBL, and now PFL, the same exclusions as to who is a “covered employer” apply. Thus, employers exempt from DBL are also exempt from PFL. PFL does not apply to public sector employers, including the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality. This exemption applies to cities, villages, towns, public libraries, public authorities, municipalities, fire districts, water districts, and school districts.
There are also a few others who are not required to provide PFL benefits, including owners/shareholders of a corporation with no employees, owners/shareholders of partnerships, LLCs, LLPs with no employees, individuals who employ personal or domestic workers that work less than 40 hours per week, Native American enterprises (i.e., casinos), self-employed individuals, or sole proprietors and members of an LLC/LLP.
Question: Can public sector employers choose to be covered under the PFL law?
Answer: Yes. The PFL regulations lay out the process a public employer must follow if it elects to opt in. The process is slightly different for unionized and non-unionized employers. If a public employer chooses to cover its non-unionized workers, it must provide 90 days’ notice of its decision to opt in. The notice must tell employees that the payroll deduction will not exceed the maximum amount allowed by law.
Not surprisingly, in order for a public employer to cover its employees who are represented by a union, it must engage in collective bargaining and obtain the agreement of the union. Once an agreement is reached, the employer must notify the WCB for approval.
Notably, public employers are the only employers who can elect to provide DBL only, PFL only, or both DBL and PFL coverage. Public employers who elect to provide PFL must maintain it for at least one year. Prior to discontinuing voluntary PFL coverage, the public employer must provide 12 months’ written notice to the WCB and the affected employees. Those employers will also need to have made provisions for the payment of any benefits incurred on and prior to the effective termination date of such benefits.
Question: Are public sector employers who are already providing voluntary DBL coverage required to also provide PFL?
Answer:No. However, public sector employers who currently provide voluntary DBL to their employees must notify their employees and the WCB whether they will or will not be providing PFL to their employees. This decision must be made and reported to the WCB by December 1, 2017.
Please continue to visit our blog for weekly Q&As during August 2017 and other PFL updates throughout the fall.
If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.