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New York Paid Family Leave and Intermittent Use

In addition to permitting the use of New York Paid Family Leave (PFL) to include siblings in the definition of covered family members on January 1, 2023, the NY Workers’ Compensation Board (WBC) adopted a revised regulation on October 6, 2021, clarifying the amount of intermittent PFL available to employees working more than five days per week. This revised regulation is effective on January 1, 2022.

What Is the Current Regulation?

Employees may take up to 12 weeks of PFL in a 52-week period. Under the existing regulation, when an employee uses PFL intermittently, the maximum amount of PFL that an eligible employee may take is calculated based on the average number of days the employee works per week times 12, up to a maximum of 60 days per year for employees working at least five days per week.

How Does the Revised Regulation Change Intermittent Leave?

Effective January 1, 2022, if an employee regularly works more than five days per week, the maximum amount of PFL that an eligible employee may take is calculated based on the average number of days the employee works per week times 12, with no cap. Because the revised regulation removes the 60-day cap for those working more than five days per week, it permits employees to take additional intermittent PFL. Therefore, employees who work six days per week would be entitled to 72 days of PFL to be used intermittently in a 52-week period, and employees who work seven days per week will be entitled to 84 days of PFL to be used intermittently in a 52-week period.

Employees who regularly work five days or less per week, will continue to have the total number of intermittent days capped at 60.

How Is an Employee’s Average Number of Days Worked Per Week Determined?

An employee’s average number of days per week is based on their average number of days worked per week during the last eight weeks immediately preceding leave as reported on the applicable PFL form.

Next Steps for Employers

Although the revised regulation only impacts those who work more than five days per week, it does increase the available amount of intermittent leave for affected employees. Employers who have employees working more than five days per week should be mindful of this change when working with the insurance carriers, third-party leave administrators and/or in the internal administration of their processes and procedures for PFL.

It is recommended that employers update their leave procedures to note this change.

HR Works, Inc., headquartered at 200 WillowBrook Office Park in Fairport (Rochester), New York, with an office in East Syracuse, is a human resource management outsourcing and consulting firm serving clients throughout the United States. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.