In Absence Management, FMLA, FMLA Updates, Pregnancy

By Angie Brown, Absence Practice Leader

August 24th, 2017

Our nation continues to see a trend in enacting legislation at the state level to support families who need to care for a family member, bond with their newborn children, and continue to receive a paycheck. Although the United States is ranked the absolute lowest in 41 countries by not offering Paid Family Leave, this statutory trend is moving us in the right direction.

The movement started in California but has since moved to New Jersey, Rhode Island, the District of Columbia and Washington. Yet it was the passing of the New York Paid family leave (PFL) that left the industry reeling while frantically searching for the solution to manage what could be the most comprehensive family leave program in the nation.


I am a vocal proponent of PFL and applaud the states listed above, while loudly encouraging other states to follow suit, barring a federal enactment which would be the most honorable solution. Now that the final New York regulations have been distributed, there are still a few things that will cause many folks heartburn over the coming years.

Disability Benefits Law

To highlight only a few, the sharing with the New York Disability Benefits Law (DBL) is a head scratcher! It’s easy for those with solutions that integrate the disability and the Family and Medical Leave laws. It’s a bit more of a challenge for those employers who do not integrate the management of both benefits.

Leave Entitlements

Additionally, New York does not allow PFL in less than full day increments. As we all know, PFL will typically run concurrently with the Federal Family and Medical Leave Act (FMLA) for eligible employees, which can be taken in the smallest increment an employer’s payroll system allows. So for example, if one is at home caring for their loved one for a full day, it’s covered by both FMLA and PFL; but if it’s less than a full day, it’s only covered by FMLA. Be careful while relaying this message, you will not want to inadvertently convey that you may be interfering with a person’s FMLA rights!

Deducting unused PFL

To add to the above, there is a really fun piece of legislation: If the FMLA hours used are less than full-day increments, but when added together they equal a full day, and the employee has been paid for that time (think PTO or sick time), an employer (also include TPA’s and insurers!) can deduct a day of PFL from the total unused allotment.

“The employer may elect to track hours taken for FMLA for any day in which the employee is paid, works at least part of the day, and is thus not eligible for paid family leave pursuant to paragraph (d) of subdivision (3) of section 206 of the Workers’ Compensation Law. When the total hours taken for FMLA in less than full day increments reaches the number of hours in an employee’s usual work day, the employer may deduct one day of paid family leave benefits from an employee’s annual available family leave benefit. The employer shall not be entitled to reimbursement from its carrier for such paid FMLA hours.”

The idea, I suspect, is that the state is hoping to avoid the “piggy back” scenario where an employee takes up to 12 weeks of FMLA in less than full days and still has their total PFL allotment available to take up to 20 weeks in year one. The challenge here really lies with the TPA’s and the insurers. How are they to know what hours an employee may have been paid for their FMLA if they are not also managing all paid time off? The right software solution can make this easy IF the information is available. This will require some serious hand-holding between vendor and employer if this piece of legislation is to work.

One thing I can say with certainty, however, is that I am seeing the industry come together to translate New York PFL. People are sharing information, asking questions and clarifying the murky waters as a team, partners and competitors alike.

Exciting times we have ahead of us!

Our experts have created a Leave of Absence Explainer guide, which details the various types of absence leave laws, including PFL. Download the guide to help you better understand the complex leave landscape. Our absence management software solutions can integrate with your existing payroll system to help you to effectively administer PFL. Built-in rules will also make automatic eligibility decisions on behalf of your administrators, ensuring you are compliant with all applicable state laws.

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