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Workers' Compensation Board

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Paid Family Leave


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 business, insurance carriers, law firms, unions, individuals, medical professionals, and businesses. All of the comments received were reviewed and assessed. The comments covered all sections of the proposed regulations, including the definitions, eligibility criteria, claim administration, coverage and compliance, dispute resolution, and voluntary coverage provisions.

  1. Definitions (355.4, 355.9, 358-3.1)
    The Board received comments from insurance carriers and advocacy groups which asked for the definition of a "serious health condition" to be clarified, and for certain conditions and treatments to be explicitly included. The Board has determined that the current definition provides sufficient guidance and flexibility for determining whether a serious health condition requires continuing treatment or supervision by a healthcare provider. Accordingly, no change to the regulation has been made.

    The Board received comments from various advocacy groups and employers requesting that the definition of "family member" be amended to match the definition used in the Family Medical Leave Act (FMLA), arguing that that the definition proposed in the regulations would permit an employee to take paid family leave based on too many different kinds of family members. The proposed regulations incorporate the definition of "family member" set forth in statute under section 201(20) of the Workers' Compensation Law (WCL). Accordingly, no change has been made to the regulations.

    The Board received a comment objecting to the inclusion of domestic partners in the definition of "family member," citing a lack of clarity as to what constitutes a domestic partner. WCL § 4 provides a detailed definition of domestic partner. Accordingly no change has been made to the regulations.

    A comment was submitted requesting that the definition of "average weekly wage" be changed to ensure that employees not working due to a disability during all or a portion of the eight weeks prior to their first day of paid family leave do not have their benefit rate reduced as a result of an absence. Section 355.9(a)(2) reflects the definition of "average weekly wage" set forth in WCL § 201(13), and provides that for the purpose of determining an employee's average weekly wage, the last eight weeks of employment preceding his or her last day worked be used in the calculation. The intent of this language is to exclude any period of disability during which the employee was not receiving wages prior to their first day of paid family leave from the calculation of their average weekly wage. Accordingly, no change to the regulations have been made.

    A comment was submitted recommending the term "individual business owner" be changed to "self-employed person." The Board has reviewed the comment and determined that "individual business owner" more accurately reflects the statutes' applicability to various business ownership structures. Accordingly, no change to the regulation has been made. A comment requested that "paid family leave" and "PFL" be defined more specifically defined. The Board has considered the comment and determined that the current definition and meaning of the terms is clear. Accordingly, no change to the regulation has been made.

    A comment was submitted requesting that the definition of the term "benefit" be amended to include the non-cash benefit payment provisions of Article 9 of the WCL. As used in part 380, the term "benefit" is relates to the employee's application for, and the payment of, Paid Family Leave wage replacement benefits. The Board has considered this comment and determined that no change to the regulations is warranted.

    A comment was received from an employee advocacy group suggesting that the definition of "wages" be amended to allow wages for tipped workers be used when calculating their average weekly wages. Section 357.1 of 12 NYCRR provides that tips are to be included when calculating an employees' rate of compensation. Accordingly, section 355.9(19) has been amended to cross-reference this section 357.1 to make this explicit in the regulations.
  2. Eligibility (380-2)
    The Board received several comments from various individuals and advocacy groups requesting that the eligibility criteria be changed to match the eligibility criteria of the federal Family Medical Leave Act (FMLA). Because the eligibility criteria for Paid Family Leave is set forth in statute under section 204 of the WCL, it cannot be changed in regulation.

    The Board received comments asking for section 380-2.1 to be amended to remove the requirement that employees on leave to provide care for a family member be in close and continuing proximity, and to add an illustrative list of qualifying caregiving activities. The Board also received a comment suggesting that the word "physical" be added to the phrase "close and continuing proximity," to eliminate potential confusion as to what constitutes "proximity." The Board has reviewed these comments and determined that the current language adequately conveys the principle that the employee must be in the same general location as the family member receiving their care. The purpose of the current language is to ensure caregivers have the flexibility to perform those activities outside of the family member's presence, but which are reasonably related to providing them care. The list of caregiving activities is not intended to be exhaustive. Accordingly, the Board has determined no changes to the regulations are required.

    A comment was submitted requesting that section 380-2.2 be amended to clarify whether an employee is required to finish his or her bonding leave by the end of the 52 week period following the birth or placement of a child. The Board has reviewed the regulation in question and determined that while the language makes is sufficiently clear that the employee's entitlement to leave expires at the end of the 52 week period, that supplemental guidance will be provided on the Board's website in the form of various examples illustrating how to calculate permitted periods of leave. Accordingly, no changes to this provision of the regulations have been made.

    The Board received a number of comments from groups representing both employers and employees concerning the 52 week eligibility period for leave to bond with an adopted child or a child born or placed prior to January 1, 2018. One comment requested that the 52 weeks of eligibility for an adoption not begin to run until after the placement of the child, even if leave was taken during the placement process, while another group sought to have leave during the adoption process be eliminated from the regulations, because it does not explicitly fall within the statutory definition of family leave. The Board received approximately 30 comments praising the inclusion of the provision allowing employees to take leave prior to the completion of an adoption, as well as the provision allowing employees to take leave for children born or placed prior to January 1, 2018. While the Board also received comments expressing concerns about potential for such leave to cause staffing shortages, the Board believes its interpretation of the bonding provision to permit leave for parents of children born or placed prior to January 1, 2018 is supported by statute. Section 204 of the WCL limits the eligibility period for bonding leave to the 52 week period that begins on the first day leave is required for the qualifying event. Accordingly, no change regulation is required.

    The Board received several form letter comments requesting section 380-2.2(c) be amended to further clarify the provision. Section 380-2.2(c) provides that disability and paid family leave benefits may be used during a post-partum period, but not at the same time. The Board believes the wording is clear as written and that no change to the regulation is required. Similarly, a comment asked that more detail be added concerning leave for a qualifying military exigency. The Board believes the regulations concerning leave for a qualified military exigency are sufficient as written and that no change to the regulation is required.

    The Board received several form letter comments requesting that section 380-2.4(d) be removed, which permits employers to begin taking employee payroll deductions starting July 1, 2017, arguing that it contradicted section 209(1) of the WCL, which requires employees to contribute to the cost of providing paid family leave benefits after January 1, 2018.

    Section 209(3)(b) states "no employer shall be required to fund any portion of the family leave benefit." However, because section 204(2) establishes January 1, 2018 as the date upon which benefit payments begin, it is necessary that employers be permitted to take payroll deductions in advance of the January 1, 2018 to offset the cost of acquiring the mandated insurance policies. Accordingly, section 380-2.4(d) is permissive in allowing, but not requiring employers to begin taking deductions on July 1, 2017. Section 209(1) contemplates this, because it also requires the Department of Financial Services (DFS) to set the maximum employee contribution by June 1, 2017. Under section 380-7.2(c), employers will not be able to collect more than the maximum weekly contribution from employees. This provision also bars those employers that choose not to begin taking deductions July 1, 2017 from taking deductions in excess of the maximum weekly contribution as a means of retroactively taking employee contributions to cover the cost of providing the required benefit. Accordingly, no changes to the regulations have been made.

    The Board received comments which asked for the definitions of part-time employee and full-time employee to be made clearer, and for people who work long days fewer than 5 days per week as the employer's full time schedule be explicitly included in the full-time definition. The Board recognizes the importance to employers and employees of knowing from the start of employment which eligibility standard will be applied, and that it not exclude employees who work full but irregular schedules. The references to full time and part time employees have been removed. Paragraph (a) of section 380-2.5 has been amended to make employees who work 20 or more hours a week eligible for family leave after 26 consecutive weeks of work, regardless of number of days worked per week. Paragraph (b) of section 380-2.5 has been amended to say that employees who work less than 20 hours per week will become eligible after working 175 days. As such, an employee who works three 12 hour shifts in a week will be subject to the full time eligibility requirements. The eligibility periods of 26 weeks and 175 days of employment come from section 204 of the WCL.

    The Board received a comment from a law firm expressing that the inclusion of "immediately" in the definition of full-time and part-time employee in section 380-2.5 creates confusion. The Board has removed the word "immediately" in addition to the clarifying changes discussed above.

    The Board received several comments on template letters which asked for section 380-2.5(b)(i) to be removed because it reduces the amount of daily leave part-time employees can take. The section did not reduce the amount of paid family leave benefits part-time employees receive, it adjusted it to account for the fact that part-time employees receive their weekly wage in fewer than 5 days in a week. Because of the amendment to section 2.5(b), the 26 weeks of employment eligibility criteria now applies to any employee that works 20 or more hours a week, so this paragraph has also been amended. Revised section 380-2.5(c) determines the maximum number of days of daily leave any employee can receive based on the number of days per week the employee works. This is because the daily benefit amount is calculated by dividing the employee's average weekly wage by the average number of days worked. For example, an employee that works 4 days per week and has an average weekly wage of 800 dollars per week will have a weekly benefit in 2018 of 400 dollar per week. Their daily benefit rate will be 100 dollars per day (400/4). The employee could take 8 weeks of leave and receive a total of 3,200 dollars, or take 32 days (4x8) of daily leave and also receive 3,200 dollars in benefits. An employee who works 5 days per week and is also paid 800 dollars per week will have a weekly benefit of 400 per week and a daily benefit of 80 dollars per day (400/5). So in the second example, the employee will also receive 3,200 dollars for 8 weeks of leave or 40 days (5x8) of daily leave.

    A comment from an employer organization asked that section 380-2.5(c) (now 380-2.5(d)) be amended so that periods of vacation and paid time off do not count toward employees' 26 weeks of continuous employment required for family leave eligibility. A comment asked for clarification on whether unpaid absences count toward eligibility. Time during which an employees' pay is subject to the withholding of their family leave coverage contribution will count toward their eligibility, whether the time was time worked or paid time off taken under the employers' policies. An unpaid leave of absence does not count toward an employee's eligibility under section 380-2.5(d), this is also in accord with how periods of temporary disability leave do not count toward eligibility under section 380-2.5(e). Accordingly, no changes to the regulations have been made.

    A comment asked for section 380-2.5(e) (now 380-2.5(f)) to be amended to restrict the maximum leave benefit of 26 weeks of combined disability and paid family leave, or 12 weeks of paid family leave, in a 52 week period to be for a single employer, due to the difficulty of checking leave usage by an employee who has changed employers within the 52 week period. The maximum employee leave entitlement per 52 week period is established by sections 204 and 205 of the WCL. Accordingly, no changes to the regulations have been made.

    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 the section to also say that an employer may not count FMLA designated leave for an employee's own serious health condition as family leave. Secondly, 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 52 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 employees of an employer covered by the FMLA is governed by the FMLA.

    A comment asked for employees to be able to request payment when enough partial day FMLA leave has been used to enable an employer to deduct a full day of PFL. Section 380-2.5(f)(3) (now 380-2.5(g)(3)) only applies to days in which the employer paid the employee, so an employee is barred by section 206(3)(d) of the WCL from separately collecting PFL benefits for any day in which they were paid by the employer. Accordingly, no changes to the regulations have been made.

    The Board received a comment from a law firm seeking clarification on whether an employer may waive the requirement that paid family leave must be taken in full day increments. Section 204 of the WCL requires that paid family leave be taken in full day increments, so no change to the regulations has been made.

    The Board received comments opposed to allowing any employee to waive PFL coverage and opt out of the employee deduction under section 380-2.6. When an employer and employee know at the date of hire that the employee's schedule will not allow them to become eligible for PFL benefits in a reasonable amount of time, it is detrimental to the employee to require them to contribute to coverage. Once the employer becomes aware of a change in the employee's schedule that would result in the employee becoming eligible for PFL, the employer is required to notify the employee and begin required to begin deducting contributions, including any retroactive deductions necessary to prevent the employer from paying for the coverage. An employee is never required to waive coverage. The maximum employee work schedules for which an employee is permitted to waive coverage has been changed to match the new benefit eligibility criteria in section 380-2.5(b) and (c): 26 weeks in a 52 week period for employees who work 20 hours or more, or 175 days in a 52 week period for those who work less. Hence, a seasonal worker hired for only 12 weeks can waive coverage, as could an individual who works 1 day a week. However, if either employees' schedule were to change and result in more hours worked during the week, their waivers would be need to be revoked and the employer would have to begin withholding contributions.

    A comment asked for the Board to provide an employee waiver form. The Board will develop a waiver form to inform an employer and employee of their rights and obligations. A comment asked for college student workers to be specifically excluded from PFL coverage and not required to complete a waiver. College student workers are covered by Article 9 of the WCL, but may sign a waiver if they meet the requirements of section 380-2.6.

    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, and which sections of the regulations can be changed by agreement, and which cannot. The Board also received a comment which asked for the section to be removed because employers cannot be absolved of their responsibility to provide paid family leave benefits. Section 211(5) of the WCL describes the process for how an employer and union may apply to the Board to have a collectively bargained plan fulfill the employer's responsibility for providing disability and paid family leave benefits. Such plans must provide benefits as least as favorable as those provided in statute. In addition, section 211(5) of the WCL requires the plan to provide payment of an annual assessment to the Board. 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, as long as the eligibility period is not greater than that required by section 203 of the WCL, and expressly permits union administration and management of records.

    A comment suggested there be a limit on the number of times an employee can collect paid family leave benefits within a 5 year period. Sections 205 and 206 of the WCL do not limit the number of times an employee can collect paid family leave, except for the maximum duration of 12 weeks within a 52 week period or 26 weeks of combined disability or paid family leave within a 52 week period. Accordingly, no changes to the regulations have been made.
  3. Notice to Employer (380-3)
    The Board received a comment from an employer organization concerned that employees who give fewer than 30 day notice of PFL could go out on normal paid time off, resulting in disputes over whether such leave should have been designated as PFL. The Board also received several comments suggesting that the regulations be amended to remove the provision allowing carriers to partially deny a claim when the employee has failed to give sufficient notice to their employer when leave is foreseeable. Section 205(5) of the WCL requires employees to give 30 days of notice to employers of foreseeable family leave. Section 380-3.1(a) of the regulations provides guidance to employers and employees as to what constitutes foreseeable leave, as well as procedures for when 30 day notice is not practicable. In addition, section 380-3.3 provides added flexibility for employers with policies for requesting leave that are less stringent, while still requiring employees to comply with that employers usual and customary notice procedures. While an employer should always be notified of unforeseeable leave as soon as practicable, this depends on the circumstances. Under section 380-3.2, the notice does not have strict technical requirements, and an employee need only give the reason and timing of the leave. As an enforcement mechanism, if an employee does not give his or her employer 30 day notice of foreseeable leave, or the shorter amount of notice required by the employer's policies, the employer may inform the carrier and the carrier can issue a partial denial of leave of up to up to 30 days from the date on which notice was given under section 380-3.5. The Board has reviewed these comments and determined that no change to the regulations is required.

    The Board received a comment concerning notice related to intermittent leave. The proposed regulation required that notice for intermittent leave only be given to the employer once. In light of the comment, section 380-3.1 has been amended to clarify that an employee using intermittent leave must give the employer separate notice for each day of paid family leave, according to the provisions of that section.

    The Board received a comment requesting that section 380-3.1 be amended to provide explicit instructions for how an employer may waive the 30 day notice requirement for foreseeable leave. Pursuant to section 380-3.3, and as noted above, an employer whose usual and customary notice requirements are less stringent than those set forth in 380-3.1 may waive the 30 day notice requirement. The Board will not restrict how an employer communicates its usual leave and attendance policies, so long as such policies also apply to family leave. Accordingly, no change to the regulations has been made.

    A comment from an insurer suggested sections 380-3.4 and 380-3.5 be changed to clarify whether an employee is ever required to provide notice to the carrier. Section 380-3.4 explicitly states an employee does not need to give advance notice of leave to a carrier unless they are an individual business owner. The first filing a carrier will receive is the request for paid family leave claim form, described by section 380-5.1. Accordingly, no change to the regulations has been made.

    One comment from a business advocacy group opposed the provision requiring employers to inform an employee of their right to paid family leave, even if the employee does not specifically mention "paid family leave" in their request. The Board believes that this is an important provision that protects the employee's right to take paid family leave, whether or not they are aware of the law. Accordingly, no change has been made.
  4. PFL Request and Certifications (380-4)
    The Board received comments from insurance carriers and various advocacy groups concerning the requirement in the proposed regulation that certifications from medical providers of a family members' 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, it has been amended to remove the provision requiring that the ICD-10 code be included as part of that certification.

    A comment asked that section 380-4.2(b) be deleted, asserting that it lacks any statutory basis. Section 380-4.2(b) provides health care providers the option of refusing to provide the required certification if the individual requesting leave is the perpetrator of domestic violence or child abuse against their patient. The provision does not does not involve the approval or denial of a claim, rather it only reaffirms the prerogative of a medical provider to consider all relevant and available information pertaining to the welfare of their patient when deciding whether to certify the request of their patient's family member for PFL. Accordingly, no change to the regulations has been made.

    A comment requested that section 380-4.3 be amended to eliminate the requirement that military family members to submit a certification for each military exigency related meeting which includes the purpose of the meeting and contact information for the individuals with whom they meet. This requirement is identical to the provisions of the FMLA for certification of leave due to a military exigency under 29 USC 2613(f). The requirement that the employee give general information relating to a qualified military exigency is not unduly burdensome or requires anything more than the minimum information necessary to validate the claim. Accordingly, no change to the regulations has been made.

    The Board received a comment which asked that section 380-4.4(b) be amended to specifically describe the requirements for a bonding certification from a person standing in loco parentis. Paragraph (3) of subdivision (b) allows a second parent to submit the documents listed in paragraphs (1) and (2) plus a second document to show their relationship to the person listed in those documents and provides a list of examples. Paragraph (4) of subdivision (b) emphasizes that a parent who does not have one of the documents listed in paragraph (3) can submit other documentary evidence of their status on a case-by-case basis. This allows an employee applying for leave in loco parentis to submit other proof of their status. The Board will add additional examples as they arise to the published answers to frequently asked questions on the program's webpage. Accordingly, no change to the regulations has been made.

    A comment asked that section 380-4.4(c) be amended to accommodate employees who apply for adoption bonding leave and stand in loco parentis to the adopted child. Section 380-4.4(c)(3) permits a second parent to provide supplemental documentation establishing their relationship and eligibility for PFL. Additionally, in New York unmarried couples can adopt a child under Domestic Relations Law § 110, so both parent's name may be listed on the documentation in paragraphs (1) and (2). Accordingly, no change to the regulations has been made.
  5. Payment and Denials (380-5)
    The Board received approximately thirty comments from template letters praising the regulations for providing a workable system for employees to make requests for paid family leave and receive benefits.

    The Board received a comment requesting that carriers be able to use forms other than those prescribed by the Board for requesting paid family leave. The regulations already permit claims in formats other than that prescribed by the chair, on condition that the carrier's form solicit the same information and that the carrier continue to accept the Board's prescribed form, if submitted. Accordingly, no change has been made.

    A comment from insurance carriers requested that employees submitting incomplete applications for family leave more than 30 days in advance of their foreseeable need for leave (i.e. birth of a child) should be responsible for keeping copies of their application until all necessary supporting information is available, instead of requiring the carrier retain documentation until such information is received. In addition, carriers noted it would be overly burdensome to retain copies of incomplete applications and send applicants a list of the missing information. Accepting pre-filed and alternate methods of filing is permissive, not required by the regulations, so carriers have the freedom to choose not to accept pre-filed or alternate methods of filing requests for paid family leave. The Board has taken these concerns into account and the regulations no longer require carriers to send employees a copy of the partially completed request for paid family leave. A carrier only needs to send a list of the missing information that needs to be submitted to complete the claim.

    The Board received a comment from insurance carriers maintaining that the requirements set forth in 380-5.2 through 5.4 go beyond the requirements for disability claims and create an undue burden for carriers. The Board believes that the regulations necessitate these requirements, but has made some changes and eliminated some of the requirements in an effort to make the process less burdensome.

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

    A comment asked for section 380-5.3(b) to be amended to clearly permit a carrier to pay a pre-filed claim within 18 days of the filing date of a supplemental filing required to complete a claim, rather than within 18 days of a pre-filed, but incomplete claim. Section 380-5.3(b) already states that once a carrier has the information necessary to complete the claim, it has 18 days to pay or deny the claim. The Board believes this is clear, so no change to the regulations has been made.

    Two comments from insurance carriers expressed concern that that 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 valid reason for denial of a claim. The purpose of 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. Unless there is another reason for denial, the carrier may not deny the claim as a result of an employer's failure to complete the employer section on the request for paid family leave. Sections (b) and (c) are not outright denials, but denials without prejudice based on the employee's failure to complete the request for leave. As a result, no change has been made.

    The Board received several comments from insurance carriers expressing concern that complying with 380-5.4(h) will be overly burdensome and prohibitively expensive, and asking that it be removed. The Board also received a comment in support of this provision from family leave advocacy groups and another comment recommending that the Board not only ensure communications are in the employee's preferred language, but also that all documents, communications and hearings also be conducted in the employee's preferred language. The Board will issue guidelines about this provision, as well as translate the request for paid family leave forms and instructions in seven languages, which insurance carriers may use freely. The Board has updated the regulation to take into account these concerns, and added reference to Executive Order 26.

    One comment from an insurance carrier opined that the notice standards of the proposed regulations are not clear enough to be consistently or fairly applied. However, the Board believes the notice requirements are clear and consistent and notes that they mirror those of the FMLA. Similarly, the prescribed time periods for issuing denials for failing to complete the request for PFL in a timely manner are also set out in the regulations. These notice requirements are for the benefit of the employer, allowing them to be to plan for their employee's absence; they should have no bearing on the carrier's ability to process claims - the notice requirements for carriers is statutory. Accordingly, no change has been made.

    A comment asked for the regulations to be amended to allow employers to approve claims instead of insurance carriers. The Board believes that the employer section of the Request for Paid Family Leave combined with the notice requirements in the regulations is sufficient to address this concern. Accordingly, no change has been made.

    A comment asked that the use of the telephone to make a claim be eliminated and only written requests be accepted. However, not every employee has access to computers or easy access to the forms. There is no requirement that a carrier accept requests by telephone, and a carrier may not refuse to accept a request made in writing. Therefore, no change has been made.

    The Board received a comment from an insurance carrier that asked for section 380-5.4(f) to be amended so as to not apply the interest rate contained in section 5004 of the Civil Practice Law and Rules (CPLR) to benefits not timely paid by carriers. The rate permitted by section 5004 of the CPLR is the rate applied by law to the late payment of civil judgments. The Board believes it is the appropriate interest rate for late payment of family benefits. Accordingly, no change to the regulations has been made.

    A comment from an employer asked for the Board to monitor whether employers have coverage, and to allow employers who do not have coverage to come into compliance without a penalty. The comment also asked that employers not be prevented from collecting contributions under section 380-5.5 to pay claims while the employer is uninsured. The Board will monitor employers to ensure compliance, however, penalties for a lack of coverage are mandated by section 220(2) of the WCL. After a claim is filed by an employee of an uninsured employer, section 213 of the WCL provides that the employer be held directly liable for any claims during the period it failed to purchase insurance or register as self-insured. Accordingly, no change to the regulations has been made.

    The Board received several comments from various associations and insurance carriers concerned about the method of payment sections of the proposed regulations. These concerns ranged from confusion over the language to application of the provisions to self-insured employers to concerns that the regulations were based on rules promulgated by the Department of Labor that have been challenged. There were also concerns expressed about the ability of carriers to comply with the requirement of providing local access for ATMs and fees, as well as the ability to provide an accurate list of ATM locations. The Board has taken these comments into account and has significantly trimmed the method of payments section of the proposed regulations to be less specific and onerous. Additionally, an employee may always receive payment by check and the carrier is 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.

    The Board received comments suggesting that the method of payment provision should make clear that if a carrier or self-insured employer provides checks as the only method of payment, they do not have to contact the employee to provide them the option of selecting a different method of payment under 380-5.8. The Board agrees with this recommendation and has clarified that the need to contact the employee with a choice of method of payment applies only when there is a choice of more than one method of payment.

    The Board also received several comments on template letters supporting the choice of method of payment, especially receiving benefits on a debit card but with the choice to receive by check if needed. The comments also supported these provisions for employees without reliable bank access. As discussed above, the regulations have been changed to decrease the burden of offering a choice of method of payment, but the choice remains.

    One comment requested changing the language in 380-5.2 from "immediately" to "within one business day." The Board believes that the provision as written is sufficient, especially given that a claim for paid family leave may be made electronically or telephonically. Accordingly, no change has been made.

    One comment from an advocacy group requested a change in language because the use of the word "may" in section 380-5.3 suggests that carriers may choose not to accept pre-filed claims. No carrier is required to accept pre-filed claims, so the Board believes this language is sufficient. No change has been made.

    The Board received a comment noting that 380-5.3 does not require that the actual start date of an employee's period of paid family leave to be confirmed. Another comment requested that the word "completed" be inserted before each mention of "claim." However, section 380-5.3(4) clearly sets out that the claim must be paid or denied within 18 days of when all missing information is received, which would include the start date of paid family leave. Accordingly, no change has been made.

    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 requested amending the "every effort" standard for resolving disputes informally between employees and carriers and replacing it with "good faith or reasonable" effort. The Board believes that "every effort" captures the correct standard and that the language does not need to be changed.

    The Board received two comments from insurance carriers requesting changes to section 380-5.4(i), regarding the owner of paid family leave claims when the employer changes carriers or the employee changes jobs to an employer with a different carrier. Because the Board believes the proposed framework for determining a carrier's responsibility for a claim is no more onerous than the process for determining liability for a disability claim, it has determined that the regulations is sufficient as written Accordingly, no change has been made.

    The Board received two comments from associations requesting the addition of specific information regarding how employees may file a claim with the Special Fund for Disability Benefits. However, because requests for paid family leave are handled by the Special Fund for Disability Benefits only in the case where the employer does not have insurance, the Board believes adding the suggested explanation is unnecessary and could result in confusion. Therefore, no change has been made.

    One comment from insurance carriers 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.
  6. Benefit Rate and Use of Accruals (380-6)
    One comment requested the regulations clarify if benefits should be paid based on the employee's work schedule or 1/5 that is found in 204(2). The process for computing the daily benefit if an employee takes intermittent leave as opposed to weekly leave has been modified to clarify how to calculate benefits for an employee on intermittent leave.

    The Board received a comment requesting 380-6.1(b) include an example. The Board believes that the language is sufficient, but gives an example here. For example, an employee works for employer #1 (ER1) and employer #2 (ER2) and is eligible for paid family leave to bond with a child. The employee is not required to take leave to bond with the child from both ER1 and ER2; the employee may choose to only take leave from ER1 while continuing to work for ER2. However, the employee may not subsequently take leave from ER2 to bond with the child, because this is the same qualifying event. If the employee plans to take leave from both ER1 and ER2 for the same qualifying event, then the leave must be taken at the same time. Accordingly, no change to the regulation has been made.

    The Board received a comment from a contractors' association supporting the inclusion of section 380-6.1(b), citing its importance generally and especially for construction industry employers.

    One comment suggested adding language to clarify how benefits will be calculated for workers with more than one job (whether they take leave from only one job or all covered jobs). The employee's average weekly wage is calculated for each job individually per the definition in section 355.9(a)(2). Because benefits will be calculated the same way for employees with more than one job as it is for employees with only one job, the Board believes that no change is necessary.

    The Board also received a comment requesting an addition to the language in section 380-6.2 so as to state that "under no circumstances" may the employer require employees to use paid time off and other requirements. The language concerning the use of paid time off for paid family leave is taken from WCL § 205(2)(c), but because the FMLA contains provisions that may preempt this when leave is taken concurrently, the regulations have been updated to conform to this provision of the FMLA.

    One comment requested that the regulations clarify whether an employer that provides full pay to an employee taking PFL out of a policy other than a Paid Time Off policy (e.g. a maternity or paternity leave policy), is permitted to seek reimbursement from their insurance carrier, for the amount the worker would have received in PFL benefits. Section 380-6.2(a) allows an employer to request reimbursement when an employee receives full salary due to the use of "unused accruals or other paid time off." This phrase is intended to be broad enough to encompass any paid time off policy an employer may have in place, including a maternity or paternity leave policy, if such policy permits. Accordingly, no change has been made.

    The Board received a comment requesting that the paid family leave program use the existing federal FMLA structure and allow the employer to decide how to pay employees. However, the benefit rate and overall paid family leave program is set forth in the statute and cannot be altered by regulation. Accordingly, no change has been made to the regulations.
  7. Compliance and Coverage (380-7)
    The Board received a comment that the regulations should explicitly state the full list of consequences and penalties, including specific information on how prosecutions may be brought. As stated above, because the penalties are statutory, the Board has removed the penalty provisions from the regulations entirely.

    Several comments included in template letters requested removing the first piece of 380-7.4 ("in accordance with the Family and Medical Leave Act…"). However, Section 203-c of the WCL, governing the continuance of health insurance during paid family leave, also opens with this sentence, and for consistency purposes the Board does not believe the removal makes sense. No change has been made.

    The Board received approximately thirty comments on template letters supporting the provisions ensuring employers provide employees with information about their rights under paid family leave.

    The Board also received several comments from advocacy groups expressing concerns about employers' compliance with requirement that they inform employees of their rights under the law. One comment requested an explicit rule be added to the regulations stating that compliance with 380-7.2(a) requires more than simply distributing a notice of rights. The Board believes that the language in 380-7.2 is sufficient as written and notes that the Board will be conducting outreach to employers on compliance and that the statute contains penalties for employers who fail to comply with these requirements. Accordingly, no change has been made to the statute.

    The Board received a comment that 380-7.2 should be extended to cover construction industry employees who have been laid off and are compensated by unemployment insurance. Section 203 of the WCL clearly states that employees are only eligible while in employment with a covered employer. When employment ceases, the employee is no longer eligible for paid family leave, and therefore no change in the regulations is needed.

    A comment requested clarification whether section 380-7.2 and 380-8.10, which require excess employee contributions to be refunded apply to self-insured employers. No employer, including self-insured employers, may collect more than the maximum contribution from its employees. The provisions regulating self-insured employers are laid out in greater detail in Part 361 of the proposed regulations. No change has been made.

    The Board received a comment that 380-7.4 should be modified to require an employee to regain eligibility for health insurance if it lapses while the employee is out on paid family leave. However, the Board is implementing section 203-c of the WCL, and modeled these sections after the statute and the federal FMLA. No change has been made.

    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 silent on how to collect permissible contributions, and as long as the benefits provided by a collective bargaining agreement are at least as favorable as the statute, the specifics may be developed by the collective bargaining agreement. 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 380-7.8(d) that carriers provide proof of cancellation to the Board before each denial. The regulation is intended to make clear that cancellation of a policy is not effective until the carrier notifies the Board of such cancellation. This provision has been updated to clarify this intent, and that attaching proof of cancellation to each denial is not required.

    One comment expressed concern that providing a single bill with both disability and paid family leave coverages summed up as a single premium would be difficult for the employer to decipher, since disability has employer paid portions, while paid family leave is completely employee funded. The requirement that the premium payment be in a single bill does not mean that there cannot be separate lines for each policy and their associated costs. The purpose of this requirement is ensure that disability and paid family leave benefits coverage are treated as one policy for purposes of cancellation, and the Board does not believe a change is necessary.

    One comment requested clarification in the regulation as to whether a carrier may collect contributions from all employees covered for disability benefits, even though some are not yet eligible for paid family leave. The Board believes this section is sufficient as written, but clarifies here that the carrier is not collecting the contributions - rather, the employer is collecting the contributions from employees which will in turn be used to pay for the premium. The employer may collect contributions from the employees from the first pay period of employment unless the employee has executed a waiver. No change has been made.

    The Board received two comments objecting to the nature of the penalties - one requesting the employer has a chance to cure any violations before being assessed a penalty, and the other objecting to the fines being mandatory and the amount. The penalties are statutory and cannot be changed by regulation, and to avoid confusion the penalty provisions have been removed from the regulations, as discussed above.

    One comment appreciated that zip code of the employer is requested rather than county, but requested clarification that the zip code of the employer should reflect the situs of the parent company or primary location in New York State. On the Request for Paid Family Leave form, the employee is asked to provide the address of their worksite and that information; the employer's portion of the form also requests the business's legal name and address, so the Board does not believe that a change is necessary.

    The Board received a comment requesting that the SIC industry code of the employer be requested rather than NAICS. The Board has conformed to the Department of Financial Services and requires only the SIC industry code rather than NAICS.

    The Board received a comment opining that the reporting requirements in the regulations are excessive and burdensome, and requested a decrease in both the reporting timeframes and the data collected. The Board believes that the reporting requirements serve an important purpose, and accordingly no change has been made.
  8. Reinstatement to Employment (380-8)
    The Board received several comments in template letters 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 to the requirement that the employee file a formal request for reinstatement prior to submitting a complaint has been made.

    Several comments from advocacy groups suggested clarifying how to enforce rights under WCL § 203-a and c. Because the business processes and the forms being developed by the Board are expected to provide further guidance, we believe no change to the regulation is necessary.

    The Board received two comments from advocacy groups suggesting the addition of a more exhaustive list of what constitutes retaliatory or adverse action toward an employee for taking paid family leave, including reinstatement. The Board believes that the wording in section 380-8.2(e) is sufficient and that an exhaustive list is not necessary or possible. No change has been made.

    One comment from a contractors association requested that this section include a caveat to the reinstatement provision stating that that the employee will be reinstated to employment, provided that the same position is available within the jurisdiction (for union work) or trade (for non-union work) on the same project that the employee was working when they left for leave. Under section 380-2.9, unions may collectively bargain for paid family leave benefits as long as the benefits are at least as favorable as the statutory paid family leave benefits. As part of the collective bargaining process, unions may include in the collective bargaining agreement specific reinstatement provisions relating to union and trade work. No change has been made.

    The Board received a comment from a business advocacy group seeking the addition of language in the regulations to protect the Unemployment Insurance experience rating of employers who hire replacement workers while an employee is out on paid family leave. The Board has no jurisdiction over the Department of Labor and Unemployment Insurance, so no change has been made to our regulations.
  9. Disputes (380-9)
    One comment requested that 380-9.8 be amended to allow claimants to request in person or telephone arbitration. The Board has an RFP pending for the arbitration process, and arbitrators may decide whether or not to accept in person or telephone arbitration. Therefore, no change has been made.

    The Board received a comment stating that the employer should have the ability to appeal a decision. There is nothing in the regulations as written that prohibits an employer from filing for arbitration regarding a paid family leave claim. No change has been made.

    One comment requested that the regulations clarify what "allotted time-frame" means in section 380-9.5. The Board agrees that "allotted time-frame" should be more clearly set forth in 380-9.5 and has included the specific time frame of 14 days, as found in section 380-9.4(d).

    The Board received a comment that the $25 filing fee should be replaced with a $75 filing fee to discourage the unwarranted filing of requests for arbitration. The Board disagrees that a $75 filing fee is necessary to discourage the unwarranted filing of requests for arbitration and believes that a $25 filing fee is sufficient. Accordingly, no change has been made.

    The Board received a comment that requests the Board develop a reasonable fee schedule and/or a cap on attorney's fees and opines that the consideration of "financial status' of the insured/employee is highly unfair and objectionable. Attorney's fees are set by the arbitrators and subject to further development by the Board, in accordance with applicable case law. Therefore, no change has been made to these regulations.

    The Board received a comment from a law firm expressing concerns that the employers are responsible for the arbitration fees in all cases, and citing the burden this would place on small employers. Because section 380-9.5 states that the arbitration fee is borne by the carrier or self-insured employer, if applicable, no change is necessary. The only time an employer is responsible for the arbitration fee is if they self-insure, in which case they are paying the arbitration fee in their role as the provider of paid family leave coverage, not as the employer. Therefore, no change has been made.

    One comment stated that the procedures for the appointment of arbitrators do not safeguard against potential bias. However, under section 380-9.7(c), a party may object to the appointment of an arbitrator and there are procedures in place for doing so. The Board believes these to be sufficient safeguards against biased arbitrators. Accordingly, no change has been made.

    The Board also received a comment asking a provision be included requiring the WCB to maintain an up-to-date list of current arbitrators on its website. The Board does not agree that this is a necessary change to the regulations, so no change has been made.

    The Board received a comment from an arbitration association requesting that section 380-9.3 indicate more clearly the party responsible for providing the Board a copy of the request for arbitration in the case when lack of coverage is alleged. Generally, the initiating party is responsible for providing a copy of the request for arbitration to the Board. However, the regulations have been modified to provide further clarification.

    The Board received another comment from an arbitration association requesting clarification for section 380-9.3(b), expressing concern that the filing fee provision is unclear. Because section 380-9.4(a) details that the initiating party pays the filing fee, and the accompanying sections detail the fee structure for the arbitration itself, the Board believes no change to the regulations is necessary.

    One comment from an arbitration association indicated that 380-9 is unclear about whether or not timeframes and due dates may be extended and requested clarification, as well as suggesting adding provisions to allow parties to request technical corrections to the decision of an arbitrator. The Board believes that the timelines and guidelines are fair and clear, and no change to the regulations has been made.

    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 if their presence is pertinent should be removed under the common law principle of arbitral immunity. The comment also requested that the language should be extended to include any court proceedings involving an arbitration. The Board has updated the regulations to reflect the common law principle of arbitral immunity and removed this language.
  10. Public Employers (380-10)
    The Board received a comment concerning whether public employers who choose not to provide PFL coverage could continue to voluntarily provide disability coverage under Department of Financial Services regulations. A public employer who voluntarily covers a class or classes of employee for only disability benefits will be able to purchase a disability benefits only policy.
  11. Insurance Regulations (360, 361, 376)
    The Board received a comment objecting to the increased security for paid family leave asserting that it would create hardships for current self-insurers. However, the Board believes increased security is necessary to ensure that the increased benefit amount can be met, and moreover employers who are self-insured for disability benefits are free to purchase a policy for paid family leave benefits. Accordingly, no change has been made.

    One comment requested clarification for section 361.5 asking if there was an independent obligation for licensed insurance carriers to have WCB third-party administrator licenses. The requirements for licensed third-party administrators are no different than they have been under the disability law prior to paid family leave, so no change has been made.
  12. General Comments
    One comment suggested an entirely new approach to the paid family leave program, including methods to combine the paid family leave benefit with disability benefits and what the contribution rates would be. However, the Board is implementing the statute as written, and the Board believes the process as implemented through the proposed regulations is the most workable solution. No change has been made.

    The Board received several comments on template letters suggesting the addition of a provision to codify protections for undocumented immigrant workers. Section 17 of the WCL addresses the immigration status of workers in this state, and therefore no change has been made to these regulations.

    The Board received two comments requesting that employees of airlines be made eligible for the paid family leave program in New York State. Airline employees are excluded from the definition of employment under the law, and the Board cannot change this by regulation, so no change has been made.

    The Board received a comment requesting that paid lactation breaks for women returning to work after leave be included in the paid family leave program. Paid lactation breaks would not occur during a period of family leave, so this request is not applicable to the paid family leave program. Accordingly, no change has been made.

    One comment recommended that paid family leave should be an optional benefit. This is a statutory requirement and cannot be changed by regulation, so no change has been made.

    The Board received a comment that insurance carriers should be able to offer, and employers the option to purchase, stand-alone paid family leave policies. In most cases, employers will not be able to purchase stand-alone paid family leave policies, but in some instances (for example, employers who self-insure for disability but not paid family leave, or public employers who opt in only for paid family leave), employers will be able to purchase stand-alone paid family leave policies.

    The Board received a comment opining that the paid family leave program as written invites abuse, and requests that the program be modified heavily. The Board believes it has taken into account many concerns in shaping the implementation of the program and has incorporated safeguards to prevent abuse as much as possible. Accordingly, no change has been made.

    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 one with one or more employee, and this cannot be modified by regulation. Therefore, no change has been made.

    One comment requested clarification in the regulations about how an employee's leave will be affected if they take leave during a period spanning two years of the phase-in. The Board does not believe that any change is necessary, because section 380-6.1(a) makes clear that the employee may receive the maximum rate set forth in section 204 in effect on the first day of family leave. Accordingly, no change has been made.

    The Board received comments expressing concerns about motion picture project employers, and suggested specific provisions for these employees. The Board has written the regulations so as to apply to covered employers and employees in general. Accordingly, no change has been made.

    The Board received a comment requesting that the regulations state "business days" rather than "days" throughout. The Board has amended the regulations so that "days" is used throughout, except where a different measurement is meant and specifically indicated, such as "business days."

    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.

    The Board received a comment requesting that the regulations include explicit guidance for self-employed individuals who wish to opt-in to PFL benefits. The guidance for these requirements is found in the Department of Financial Services proposed regulations regarding paid family leave, and so no change has been made here.

    The Board also received a comment generally commending the regulations and the paid family leave as a whole.

Changes to the Regulations:

The Regulation that is being republished contains the following changes from the proposed rule published in the February 22, 2017 State Register:


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