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Workers' Compensation Board

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Paid Family Leave

Summary of Assessment of Public Comment

The Chair and Board received approximately 117 formal written comments. Approximately 42 were form letters from employee advocacy groups. Approximately 14 were from individual employees, and the remaining 61 comments were submitted by associations representing businesses, insurance carriers, law firms, unions, and employees

All of the comments received were reviewed and assessed. The comments break down into several groups: 1) those addressing definitions and eligibility; 2) those addressing the administration of benefits; and 3) insurance carrier compliance and arbitration procedures. The full Assessment of Public Comment summarizing, analyzing, and responding to the comments received exceeds 2,000 words. This document is a summary of the full Assessment of Public Comment. A copy of the full assessment is posted on the Board's website at

A comment was received from an employee advocacy group suggesting that the definition of "wages" be amended to allow wages for tipped workers to be used when calculating their average weekly wage. Accordingly, section 355.9(19) has been amended to cross-reference section 357.1 of 12 NYCRR to explicitly provide that tips be included in the average weekly wage calculation.

The Board received several form letter comments requesting the removal of section 380-2.4(d), the provision permitting employers to begin taking payroll deductions for employee contributions beginning July 1, 2017, because it conflicts with WCL § 209(1), which states that employees shall contribute the cost of providing family leave benefits beginning January 1, 2018. However, WCL § 209(3)(b) states "no employer shall be required to fund any portion of the family leave benefit" and establishes June 1, 2017, as the date the superintendent of financial services shall set the maximum employee contribution, while reserving September 1 as the date setting the rates for every year thereafter. The Board believes the statute clearly envisions permitting employers to collect employee contributions after the superintendent of financial services has set the rates on June 1, 2017, "consistent with the principle that employees should pay the total costs of family leave premiums (WCL§209(5))." The Board believes Section 380-2.4(d) accurately reflects the legislative intent of the statute, so no changes to the regulations have been made.

The Board received comments requesting the definitions of part-time and full-time employees be amended to account for employees with compressed work schedules that work longer hours but fewer days. Section 203 of the WCL requires employees to become eligible for family leave after either 26 weeks or 175 days of work, depending on their schedule. Paragraphs (a) and (b) of section 380-2.5 have been amended to apply the 26 week eligibility criteria to employees who work 20 or more hours per week, and the 175 day eligibility criteria to those who work less than 20 hours per week.

The Board received several form letter comments requesting section 380-2.5(b)(i) be removed because it reduces the amount of leave available to part-time employees. This section only adjusts the benefit amount so that payments are calculated based on the number of days worked per week. This section has been amended to conform to the changes to section 380-2.5(a) and (b), discussed above, concerning the eligibility criteria for employees.

The Board received comments which asked for the regulations to be amended to clarify whether leave designated by an employer as FMLA leave for an employee's own serious health condition affects their PFL leave balance, and if FMLA leave for bonding is concurrent with family leave. Section 380-2.5(f)(1) (now 380-2.5(g)(1)), in accordance with section 206(4) of the WCL, permits an employer to designate an employee's PFL leave as concurrent with FMLA leave. The Board has amended section 380-2.5(f) (now 380-2.5(g)) to also state that an employer may not count FMLA designated leave for an employee's own serious health condition as family leave. Furthermore, if an employer designates a period of leave to be covered by the FMLA for a reason which the employee is also eligible to take family leave benefits under section 204 of the Workers' Compensation Law, and the employee declines to apply for payment under section 380-5.1, the employer may count the period against the employee's maximum leave in a 52 consecutive week period under section 204(2)(a) of the WCL. Section 380-6.2 has also been amended to clarify that the use of paid time off accruals during family leave by an employee of an FMLA covered employer is governed by the FMLA.

The Board received comments opposing the ability of an employee to waive PFL coverage and opt out of the employee contribution under section 380-2.6. The purpose of the waiver is to allow those employees that will not become eligible for PFL within a reasonable amount of time to avoid paying for a benefit they will not receive. The Board recognizes the need for clarity, and has amended this section to explicitly permit employees that will be employed for fewer than 26 consecutive weeks or 175 days in a 52 week period to waive coverage. The Board will develop a waiver form.

The Board received comments asking for section 380-2.9 to provide more detail about how a collectively bargained plan can take the place of an employer plan. WCL § 211(5) describes this process. Such plans must provide benefits as least as favorable as those provided in the statute. Section 380-2.9 has been amended to explicitly state that a collectively bargained plan may allow employees to establish their eligibility for benefits while working for multiple employers.

The Board received comments from insurance carriers and various advocacy groups regarding the requirement in the proposed regulations that certifications from medical providers of a family member's serious health condition include the ICD-10 code for the diagnosed condition. These groups identified various concerns, ranging from possible delays caused by incomplete forms, to health privacy concerns. While section 380-4.2(a)(3) requires certification of a serious health condition from a health provider, in light of these comments, this section has been amended to remove the provision requiring that the ICD-10 code be included as part of that certification.

A comment from insurance carriers requested that employees submitting pre-filed applications for family leave more than 30 days in advance of their need for foreseeable leave (i.e. birth of a child), be responsible for keeping copies of their application until all necessary supporting information is available. Carriers commented that it would be overly burdensome to retain copies of incomplete applications and send applicants a list identifying the missing information. The Board has taken these concerns into account, and the regulations no longer require the carrier to send the employee the request for paid family leave in addition to a list of the missing information.

The Board received a comment from an insurance carrier asking that section 380-5.3(b) be amended to allow carriers to provide contact information for the applicable office instead of an individual contact person in their response to a pre-filed claim. The Board has amended section 380-5.3(b)(3) to allow the notice to include contact information for the applicable office.

Two comments from insurance carriers expressed concern that that section 380-5.4(e) directly conflicts with parts (b) and (c) of that section. However, the Board believes that these sections make clear that an employer's refusal to comply does not constitute a valid reason for denial of a claim. The purpose of section 380-5.4(e) is to make clear that if the employer is not cooperative in the process, the carrier must reach out to the employer in order to complete the request for paid family leave and may not penalize the employee for the employer's lack of cooperation.

The Board received several comments from insurance carriers expressing concern that complying with section 380-5.4(h) will be overly burdensome and prohibitively expensive. The Board will translate the request for paid family leave forms and instructions in seven languages, and has updated the regulation to take into account these concerns.

The Board received several comments from various associations and insurance carriers concerning the method of benefit payments in the proposed regulations. There were also concerns expressed about the ability of carriers to comply with the requirement of providing local access for ATMs and an accurate list of locations. The Board has taken these comments into account and has amended the provisions accordingly. Additionally, carriers are not required to provide payment by debit card or direct deposit. However, if the self-insured employer offers different methods of payment to their employees taking paid family leave, then the same payment provisions apply to the self-insured employer.

One comment requested the addition of a provision that the carriers specifically state the basis for their denial of a request for paid family leave. The Board has included language to require that the carriers specifically state the basis of a denial of a request for paid family leave. One comment expressed concern that the proposed regulations only partially reproduced the relevant statutory penalties. Since penalties are in the statute, the Board has removed them from the regulations altogether to eliminate any confusion.

One comment requested that the regulations explicitly state that PFL contributions are required while the employee is out on either disability or paid family leave. Section 380-7.2 has been amended to add that an employer may continue to deduct employee contributions while an employee is receiving benefits under WCL section 204.

One comment from an industry association requested that the regulations explicitly permit the contributions for the paid family leave benefit to be calculated with Workers' Compensation, Disability and other similar benefits provided under a collective bargaining agreement with a single contribution rate. Employee contributions for statutory workers' compensation coverage is prohibited by law. The regulations are otherwise silent on how contributions are to be collected. The Board does not believe the regulations should address this specifically, but the collective bargaining sections of the regulations have been updated for clarification.

The Board received a comment from insurance carriers objecting to the requirement in section 380-7.8(d) that carriers provide proof of cancellation to the Board before each denial. This provision has been updated to clarify the intent of the Board that attaching proof of cancellation to each denial is not required.

The Board received a comment requesting that the SIC industry code of the employer be requested rather than NAICS. The Board is conforming to the Department of Financial Services' regulations and only requiring the SIC code.

The Board received several form letter comments suggesting the removal of the requirement that workers file a formal request for reinstatement within 120 days of the alleged violation as a precondition to filing a complaint, including a suggestion that the formal request for reinstatement be optional, or that the deadline for filing such a request be extended to match the statute's deadline of two years. The Board has updated the regulation to eliminate the 120 day requirement for the formal request for reinstatement. However, no change has been made to the requirement that the employee file a formal request for reinstatement prior to submitting a complaint.

The Board received a comment from an arbitration association stating that the language allowing an arbitrator and dispute resolution forum to become parties to a court proceeding relating to the arbitration award should be removed under the common law principle of arbitral immunity. The Board has removed this language and updated the regulations to reflect the common law principle of arbitral immunity.

The Board received a comment concerning public employers who choose not to provide PFL coverage and their ability to continue to voluntarily provide disability coverage under Department of Financial Service's regulations. Public employers will continue to be able to purchase policies that only provide disability coverage.

The Board received several comments from small employers and individuals expressing concerns about the adverse effect of paid family leave on small employers. The statute defines a covered employer as an employer with one or more employees, and this cannot be modified by regulation. Therefore, no change has been made.

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