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Labor & HR Committee Update

Staff Contact: Frank Kerbein
October 20, 2017

Hello Everyone:

Below you will find information regarding new developments in human resource management. Feel free to contact me directly if you would like any additional information or if you would like to discuss potential impacts and compliance strategies. I can be reached on the HR Line (800) 332-2117 or at frank.kerbein@bcnys.org.

Additional Paid Family Leave Forms Released

The Workers’ Compensation Board has released the certification forms employee will need to apply for paid family leave when it becomes effective on January 1, 2018.  These forms can be found on the NYS Paid Family Leave website under the “Forms” section and include the forms and instructions necessary for employees to apply for certain types of leave. The general application form (PFL-1) will be required for each type of leave. In addition:

The Board had previously released the employee waiver form.

PFL and FMLA "Look Back" Period - Deadline Approaching for Change

For those employers with more than 50 employees who are subject to the Family and Medical Leave Act (FMLA), complying with the paid family leave (PFL) poses many challenges when coordinating these two leave benefits.  The “look back” period is one of those challenges.

As you know, under the FMLA, employers have an option to choose which method would determine a “leave year.” The employer may select any one of the following four methods for determining the 12-month period during which eligible employees may take up to 12 workweeks of leave:

  1. The calendar year (January 1st through December 31st),
  2. Any fixed 12 months, such as a fiscal year or a leave year beginning on the first day of an employee’s employment,
  3. A 12-month period measured forward from the first date an employee takes FMLA leave (the next 12-month period would begin the first time the employee takes FMLA leave after the completion of the prior 12-month period), or
  4. A rolling 12-month period measured backward from the date an employee uses FMLA leave (each time an employee takes FMLA leave, the remaining leave is the balance of the 12 weeks not used during the immediately preceding 12 months).

Under PFL…there is no such option.  For PFL the leave year is "Fifty-two consecutive weeks" and is defined as the 52 consecutive weeks or calendar weeks that shall be computed retroactively with respect to each day for which benefits are currently being claimed.  It’s a look back period.

Employers covered by FMLA that use a look back period different from PFL may wish to consider changing their look back methodology to better coordinate FMLA leave with PFL leave. 

An employer may change FMLA methods to use a different 12-month period only after providing 60 days’ notice of the intended change to all employees. During the transition, employees must retain the full benefit of 12 workweeks of leave under whichever method provides the most benefit to the employee. If an employer fails to select a 12-month period, the employer must use the method that is most beneficial to the employee.

Employers subject to FMLA must decide soon if the 60-day notice will be given to coordinate look back periods with PFL.  Notice of change should be given no later than November 1, 2017 to begin January 1, 2018.