On April 4, New York State passed what is being hailed as the most comprehensive and generous paid family leave law in the country. The Paid Family Leave Insurance Act (A. 3870 / S. 3004) (“PFLIA”) will provide workers in New York State with up to 12 weeks of paid leave per year, to bond with a new child, or to care for a seriously ill family member. For military families, the leave time can be used to address legal, financial and childcare issues. Notably, unlike the federal Family Medical Leave Act (“FMLA”), coverage does not include taking care of an employee’s own medial condition. That means, if unrelated to childbirth, employees would still need to seek time off under New York State’s Temporary Disability Insurance (“TDI”) program.
Beginning in 2018, all full and part-time employees who have been working at their jobs for at least six months will be eligible for eight weeks of paid leave up to one-half of their weekly wages, capped at 50% of the New York Statewide Average Weekly Wage (“SAWW”). These payments will gradually phase in over four years until 2021 when workers will be entitled to 12 weeks of leave, for benefits up to two-thirds of their weekly salary, capped at a maximum of 67% of the SAWW.
The current SAWW is $1,266.44, through June 2016 (with predicted increases each year). So, the benefit will be robust. For instance, if an employee received family leave benefits today that would mean s/he could receive up to $633.22 per week; or $844.29 if the two-thirds rate was in effect. As compared with maximum benefits workers in New York are eligible to receive under its Temporary Disability Insurance (“TDI”) program that’s a big improvement. That program caps recipient benefits at a mere $170 per week. Until now, TDI was the only financial recourse postpartum women in New York were eligible for – unless their employers wanted to be more generous (sometimes true for large corporations, rarely for smaller employers). Although, beginning in 2018, women still would not be entitled to paid family leave in order to recover from their own childbirth recovery, they would be eligible to receive paid family leave to bond with their child at a vastly improved weekly wage replacement rate.
The PFLIA program is a fully employee-funded program, meaning, unlike several other states and localities, employers will not have to contribute to the cost. Rather, employees will pay into a state sponsored insurance program and payments to workers will be paid out through this program. These contributions will start at as little as 45 cents per week when the law goes into effect in 2018. Thereafter, New York’s Superintendent of Financial Services will analyze what amount of funding the program needs based on the cost per worker of providing paid leave. While the total per employee contribution remains unknown, an important premise behind the legislation is that employee contributions should represent a very small deduction from each employee’s weekly paycheck. It is estimated that by year four that deduction will be 88 cents per week.
Significantly, paid leave is protected leave. All qualified employees who take paid family leave will be entitled to return to their jobs. If employers violate the law, employees will be entitled to reinstatement and back pay. Unfortunately, there is no private right of action to go into Court. Claims will have to be administered through the New York Worker’s Compensation Board which handles violations of the TDI law.
Several other states are now looking to follow New York’s lead. Ohio just introduced a 12-week paid leave bill the same week New York’s law was signed. Connecticut has introduced a bill as well that would entitle employees to be compensated up to $1,000 a week. The proposed bill would cover employers with as little as two employees.
In 20 states, legislation has either been introduced or is being actively pursued. Each of these proposed bills and programs strikes a different balance. Some states would provide fully employer-funded paid programs, while others base their programs on models similar to that used in New York, making their proposed paid family leave benefits solely through employee contributions, and some are a mix of both. What is covered under each of these proposed laws varies too. Some cover all employers, while others limit coverage to larger employers, although many require less than the FMLA does with 50 or more employees as a basis for coverage.
These laws undoubtedly will offer a new generation of workers the family-job balance that previous generations did not have. Not only will employees be less likely to face devastating economic choices when they decide to have children or need to care for a loved one, but as studies show, when family leave is paid, women are far less likely to be forced out of or choose to opt out of the workforce when having children. This in turn will decrease a persistent wage gap between men and women who have children. In addition, further studies document that men are far more likely to take family leave when it is paid, thereby bringing men and women closer to wage parity and more likely to share domestic responsibilities at home.
Nonetheless, as evidenced by this patchwork of laws and proposed bills, paid family leave – some, all or none – creates inequality among American workers when states offer inconsistent opportunities for work-life balance. Even worse, many states still have no paid family leave laws on their books, and do not seem close to passing such legislation in the near future. This result strongly emphasizes the need for national legislation that would allow us to join the rest of the industrialized world. But as a start, we New Yorkers’ are proud of where our efforts have led – to the strongest, broadest, most generous paid family leave law in the country! This law will make all the difference to the estimated 6.9 million workers in this state.
For more information about what you can do to support and/or expand family leave laws in your state check out what your legislators are doing and join family leave campaigns. Or, contact us at the Gender Equality Law Center.
Allegra L. Fishel is the founder and Executive Director of the Gender Equality Law Center (“GELC”), a 501(c)(3) legal and advocacy center. GELC’s mission is to advance laws and policies that promote gender equality in all spheres of public and private life.
Lauren T. Betters is a 2015 law school graduate of Northeastern Law School and GELC’s first Law Fellow.