Paid Family Leave: Week 2 of Q&As

August 8, 2017

By: Christa Richer Cook and

Welcome to Week 2 of Bond’s New York Paid Family Leave (“PFL”) Q&As.  Many of the most commonly asked questions during Bond’s PFL webinars focused on the intersection of the federal Family and Medical Leave Act (“FMLA”), the Disability Benefits Law (“DBL”) and PFL.  In this post, we answer some of those questions.

Question:  Can an employee save their PFL time and take it after having already taken 12 weeks of FMLA?  Or vice versa, save their FMLA time and use it after taking PFL?

Answer:  Like every good legal question, the answer is . . . it depends.  More specifically, it depends on the reason for the leave.  It is important to bear in mind that the qualifying reasons for FMLA and PFL are like intersecting circles.  While there are some reasons that fall under both laws, there are some leaves that will be covered only by FMLA, and some that will be covered only by PFL.  So, an employee can only “save” one type of leave or “stack” the two leaves if one of the leaves (or part of a leave) qualifies under only one law.

To demystify this interplay, let’s take a few potential scenarios:

• Karen takes leave to care for a grandparent with a serious health condition beginning in January 2018 for 8 weeks.  This is a PFL qualifying reason, but not an FMLA qualifying reason.  (Grandparents are a covered family member under PFL, but not under FMLA.)  Therefore, when Karen returns to work, she still has her full 12-week entitlement under FMLA.  In October 2018, Karen’s daughter has surgery and she needs 6 weeks off.  Although she has exhausted her PFL leave, she still has her entire FMLA bank of 12 weeks available (assuming the 1,250 threshold of hours is met) because the January leave did not count against her FMLA entitlement.  Karen ends up taking 14 job-protected weeks off in 2018 (and still has 6 weeks of FMLA time to spare!).
• Ed takes leave in February 2018 because he is having bunion surgery.  His surgeon takes him out of work for 6 weeks.  This is an FMLA qualifying leave, but not PFL because an employee’s own serious health condition is not covered under PFL.  In July 2018, Ed’s father has a stroke.  Ed requests 10 weeks off because his father is undergoing rehabilitation.  Ed only has 6 more weeks of FMLA.  However, he still has 8 weeks of PFL leave that he has not yet touched!  Here is where things get more complicated:  Is Ed entitled to a total of 14 more weeks (6 FMLA + 8 PFL)?  No!  The first 6 weeks would count as both FMLA and PFL.  His father’s serious health condition is covered under both laws.  After 6 weeks, FMLA runs out, but Ed can stay out an additional 2 weeks under PFL.  In the end, he is entitled to only 8 more weeks — not the 10 he requested.  The employer could deny the additional 2 weeks.
• Jeremy is a new father in 2018.  He has heard about these laws, and knows that FMLA provides 12 weeks and PFL provides 8 weeks (in 2018).  He requests 20 weeks to bond with his new baby boy.  Is he eligible for 20 weeks?  No.  In this case, the reason for the leave (bonding) qualifies under both laws.  Assuming Jeremy has met the eligibility requirements under both laws, the employer can require that the leaves be taken concurrently.  The 12 weeks (FMLA) and 8 weeks (PFL) run at the same time.  He can only take a total of 12 weeks of job-protected leave.

Question:  In that last example, couldn’t Jeremy say that he does not want to be paid for the first 12 weeks (the FMLA period) and refuse to file a PFL claim, in an attempt to save the PFL leave?

Answer:  No.  The PFL regulations provide that if a leave qualifies under FMLA and PFL, the employer designates the leave under FMLA, and the employee is notified that it is covered under both laws, the FMLA leave time will count against the employee’s PFL entitlement even if the employee refuses to file a PFL claim.

Question:  Can you review the maternity leave scenario again?

Answer:  Maternity leave promises to be the most confusing to administer because of the intersection of PFL, FMLA, and DBL.  Here is how it could play out in a typical pregnancy:  The first 6-8 weeks after childbirth is usually considered a period of disability, so the mother could use her DBL benefits without touching her PFL bonding benefit.  Then, when she completes that 6-8 week period, she could transition to PFL bonding leave and receive the 8 (eventually 12) week benefit after the DBL benefit.  Meanwhile, FMLA runs concurrently with both the DBL and then the PFL leave.  However, the mother’s leave entitlement does not end at the expiration of the 12 weeks of FMLA leave because under state law, she is entitled to the full 8 week PFL benefit once she finishes her DBL benefit.  The total job-protected time taken (assuming 6 weeks of DBL) is 14 weeks (6 + 8) in 2018.

Question:  Can a mother choose to forego DBL and go straight to PFL?

Answer:  Yes, once the baby is born, but it will reduce the total number of weeks she can be out on job-protected leave.  The mother could elect to start PFL bonding leave on the delivery date.  The 8 weeks of PFL would run concurrently with FMLA, and she would be entitled to a total of 12 weeks of leave.

Question:  We heard that intermittent leave under PFL can be taken in full day increments, and nothing shorter.  If an employee wants to take shorter increments, can the employee use just FMLA leave?  Does that count against his/her PFL entitlement?

Answer:  Luckily, the regulations address this very scenario.  If an employee takes FMLA leave in increments shorter than a day, and if the reasons for the leave would also qualify under PFL, the employer may track this time, and 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.”  However, “[t]he employer shall not be entitled to reimbursement from its carrier for such paid FMLA hours.”  12 N.Y.C.R.R. § 380-2.5(g)(5).

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Please continue to visit our blog for weekly Q&As during August 2017 and other PFL updates throughout the fall.

If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.