Days of our [employment] lives: parental leave
More moms and dads guaranteed time off in 2018 (part 2)
In addition to paid sick leave laws (see yesterday’s blogpost), states continue to expand protections for family leave, particularly leave for new parents. Both California and New York have implemented new family leave laws that will take effect on Jan. 1, 2018. Below we provide a brief overview of each law. To ensure compliance with these laws, employers located in California or New York must review their legal requirements and prepare to implement those requirements, which likely go beyond many employers’ traditional employee leave policies.
Aimed at small employers, California’s New Parent Leave Act, requires employers with 20 to 49 employees within a 75-mile radius to provide eligible employees with at least 12 weeks of unpaid parental bonding leave. The New Parent Leave Act does not apply to employees covered by both the federal Family Medical Leave Act (FMLA) and the California Family Rights Act, which provide 12 weeks of unpaid leave for bonding and other types of family leave to eligible employees who work for employers with at least 50 employees.
To be eligible, employees must have:
- worked for the employer for at least 12 months; and
- completed at least 1,250 hours of service with the employer during the 12-month period prior to the commencement of leave.
Once eligible, employees may take their leave to bond with a new child within one year of the child’s birth, adoption or foster care placement. During their parental leave, employees may elect to substitute any type of accrued paid time off, including vacation or sick leave. Employees are also provided job-protected leave and continuation of their health insurance coverage during their leave.
Arguably the most generous and complicated family leave law, the New York Paid Family Leave Law also goes into effect on Jan. 1, 2018. Under the Paid Family Leave Law, New York employers with one or more employees must provide eligible employees paid family leave. The duration of leave and percentage of pay an employee receives will increase gradually between 2018 and 2021, according to a schedule set by the Paid Family Leave Law, beginning with 8 weeks in 2018.
An employee will be eligible for leave if:
- the employee works a regular schedule of 20 or more hours per week and has worked for the employer for at least 26 weeks; or
- the employee works a regular schedule of less than 20 hour per week and has worked for the employer for at least 175 days.
If eligible, employees may use leave for the following purposes:
- the birth, adoption or placement of a new child (within the first 12 months after the child’s birth or placement);
- to provide care to a family member due to a serious health condition; and
- when a spouse, child, domestic partner or parent of the employee is on active military duty abroad or has been notified of an impending call or order of active duty abroad.
Employees are also entitled to job protection upon return from leave and continuation of their health insurance while on leave.
Paid family leave will be funded by weekly employee payroll deductions to an employer’s Paid Family Leave insurer. Therefore, most employers, unless self-insured for disability insurance, must obtain Paid Family Leave insurance (typically through their disability insurance carrier).
Employers may permit, but cannot require, employees to substitute other forms of paid leave, such as vacation or sick leave. If an employee elects to substitute paid time off to receive their full salary during leave, the employer may request reimbursement from the insurance carrier for the benefits that would have been paid to the employee.
Leave covered by both federal FMLA and the Paid Family Leave Law may run concurrently; however, employers must notify employees that their leave will be designated under both laws and must provide employees the notice and certification forms required under the FMLA.
Given the complexity of these leave laws, the potential difficulties employers will face implementing them and the potential penalties for non-compliance, impacted employers should consult with legal counsel to ensure a smooth rollout process.
This post is part of Godfrey & Kahn's mini series The days of our [employment] lives.