New York City Family Medical Leave Act Lawyers

Paid Family Leave Act (PFL) and Family Medical Leave Act (FMLA)

In New York many employees are covered for both paid and unpaid leaves of absences but there are important differences between the two types of leave, Paid Family Leave and Family Medical Leave.  Always consult an attorney for specific advice about your situation.

FMLA Leave

Enacted in 1993, the Family Medical Leave Act (FMLA) is a federal law protecting an employee’s right to unpaid time off to care for themselves or a sick family member.  Covered employees are guaranteed up to 12 work weeks of protected and unpaid leave for a period of one year when they have qualifying medical or family needs. To be covered for FMLA leave, you must have worked at least 1250 hour in the past 12 months and work for an employer with 50 or more employees. The employer can require you to use your paid vacation, sick days and personal days towards your FMLA leave.

Paid Family Leave

Effective January 1, 2018, New York State’s Paid Family Leave covers employees in the private sector who are now entitled to take up to 10 weeks of job-protected, paid leave to care for a child, or a family member with a serious health condition or to help manage family affairs if a family member is called to active military service. (Will become 12 weeks in 2021.)  All employers with at least one employee working in New York for 30 consecutive days are required to offer this benefit, but you must work at least 26 consecutive weeks if scheduled to work more than 20 hours in a week to be eligible. The cost is paid through payroll deductions required by law. The benefit is paid through an insurance company. Timely application is required for the benefit.  Certain part time or temporary employees can waive the coverage but if they work enough hours the coverage becomes mandatory (more than 26 weeks if working 20 or more hours a week, 175 days in a 52-week period and scheduled for less than 20 hours in a week).

FMLA and Paid Family Leave have Similarities and Differences

FMLA Leave and Paid Family Leave can be taken for many of the same reasons – to care for a family member with a serious health problem, but they are not exactly alike.  For example, FMLA leave allows the employee to take an unpaid leave to care for herself because she has a medical problem, while Paid Family Leave does not. Paid Family Leave is only available to care for a member of the employee’s family.  The reason Paid Family Leave is available for the birth of a child is that the baby needs care.

There are other differences as well.  Under FMLA leave the employer can require an employee to use paid time off (PTO) – vacation, sick days, personal days for example, as part of the leave.  Under Paid Family Leave the employer is prohibited from requiring an employee to use paid time off to make up the difference between what they were paid and what they get from the insurance company.  (The employee’s payment is a percentage of what they make.) The employee can use paid time off to get paid the difference, but it is voluntary. But note, it is mandatory that Paid Family Leave be applied to FMLA leave if the employee is eligible under both when taking the leave.  Disability leave cannot be used during Paid Family Leave.

For the Birth of Your Baby

If eligible for all three, for the birth of a baby the employee should first use her disability benefits, then paid family leave benefits and then FMLA benefits (with or without drawing down on PTO).  This will maximize your right to be home for as long as possible.

Job Security and Health Insurance Coverage

The law requires that the employer hold the job for an employee on Paid Family Leave or FMLA leave and continue medical and health insurance during the term of the leave.  The employee is still responsible for paying the employee share of maintaining the insurance and failing to do so can result in the insurance being cancelled.

It is important that the employee communicate with his or her employer about taking any leave to avoid confusion.  But if you believe that the employer is not giving you the leave you are entitled to receive or that you are being fired for asking to take such a leave or if the employer fails or refuses to hold your job for you, contact us right away.  Telephone 212 868-6300 or email us using the form. Cary Kane can help.