Current through Register Vol. 46, No. 12, March 20, 2024
a. An employee of a covered employer whose
regular employment schedule is 20 or more hours per week will become eligible
to take family leave during his or her employment with such employer, provided
the employee has been either:
1. In
employment, as defined in this Title, of the covered employer for at least 26
consecutive work weeks preceding the first full day family leave begins;
or
2. In employment, as defined in
this Title, of the covered employer during the work period usual to and
available during the entirety of such 26 consecutive weeks preceding the first
full day the leave begins in any trade or business in which he or she is
regularly employed and in which hiring from day to day of such employees is the
usual employment practice; or
3.
In employment, as defined in this Title, of the covered employer for at least
26 consecutive weeks, such consecutive weeks may be tolled during periods of
absence that are due to the nature of that employment, such as semester breaks,
and when employment is not terminated during those periods of
absence.
b. An employee
of a covered employer whose regular employment schedule is less than 20 hours
per week will become eligible to take family leave from such employment after
working 175 days in such employment preceding the first full day the leave
begins.
c. Maximum family leave for
all employees.
1. Weekly leave. Any employee
taking family leave in weekly increments will be eligible for the maximum
number of weeks of leave in any 52 consecutive week period. Weekly benefits are
payable in accordance with subdivision 2 of section
204 of the Workers' Compensation
Law.
2. Daily leave. When any
employee takes family leave in daily increments, the employee's maximum number
of days of paid family leave is calculated based on the average number of days
worked per week multiplied by 12 as of January 1, 2021.
3. Computing the average daily rate for daily
leave.
i. When an employee requests family
leave in daily increments (eg. every Monday for six weeks), rather than as a
weekly benefit, the daily benefit shall be calculated based on the employee's
average weekly wage (computed in the same manner as set forth in section
355.9)
divided by the average number of days the employee worked per week.
ii. In arriving at the average number of days
the employee worked per week for the purpose of determining the employee's wage
for one day, the employer shall average the number of days the employee worked
per week over the same eight weeks used in calculating the employee's average
weekly wage under section
355.9(2).
The average number of days worked may be fractional in order to accurately
convert the average weekly wage to an equivalent daily wage.
d. In order to
determine eligibility for family leave under this section, the use of scheduled
vacation time; the use of personal, sick or other time away from work that has
been approved by the employer; or other periods where the employee is away from
work but is still considered to be an employee by the employer, shall be
counted as consecutive weeks or consecutive work weeks, or days worked, as long
as the contributions to the cost of family leave benefits, pursuant to section
209 of the Workers' Compensation Law and
required by the employer of like employees, have been paid for such periods of
time
e. In order to determine
eligibility for family leave under this section, periods of temporary
disability taken pursuant to Article 9 of the Workers' Compensation Law shall
not be counted as weeks of employment or days worked for determining
eligibility for paid family leave.
f. An employee who is eligible for both
disability benefits and family leave during the same period of 52 consecutive
calendar weeks shall not receive more than 26 total weeks of disability and
family leave benefits during that period of time. No employee shall receive
more than the maximum duration of family leave benefits, pursuant to section
204 of the Workers' Compensation Law, in any
52 consecutive calendar week period as such is defined in section
355.9
of this Subchapter.
g.
1. In the event that a period of family leave
benefits received by an eligible employee under this Title is concurrently
designated as leave pursuant to 29 U.S. Code Chapter 28 (the Family and Medical
Leave Act or "FMLA") by an employer subject to FMLA, the employer shall notify
the eligible employee of such designation and shall also provide the employee
with the notice required under
29 CFR
825.301 and
825.305.
2. If an employer fails to provide
the notice required by this section, the employer will be deemed to have
permitted the eligible employee to receive family leave benefits without
concurrently using the benefits available under FMLA, as permitted under
section
206 of the Workers' Compensation
Law.
3. If an employer designates a
period of family leave to be covered by the FMLA for a reason also covered
under section
201(15) of the Workers'
Compensation Law, and if the employer informs the employee of their eligibility
for family leave benefits and the employee declines to apply for payment under
section
380-5.1
of this Part, the employer and its insurance carrier may count the leave
against the employee's maximum duration of family leave in a 52 week period
under section 204(2)(a).
4. FMLA
designated leave taken by an employee due to his or her own serious health
condition is not family leave under section
201(15) of the Workers'
Compensation Law and does not reduce the amount of paid family leave an
employee is eligible for under section 204(2)(a).
5. 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.