Laws Governing Family Leave in New York
In addition to the FMLA, which entitles eligible employees of covered employers to take unpaid, job-protected leave for to care for themselves, a relative and/or bond with a new child, New York and other federal laws provide additional leave provisions and protections.
New York State Paid Family Leave Program
Starting January 1, 2018, both full and part time employees in New York State, who have worked for at least six months, will be eligible for paid family leave. The law will be rolled out in stages: in 2018, an employee will be able to take up to eight weeks of time off from work with pay. The number of weeks will increase until 2021, when an employee will be able to take up to 12 weeks of paid leave. In 2018, the wage replacement rate will start at 50% of an employee’s weekly wage, capped at 50% of the statewide average weekly wage ("SAWW"), once full implemented in 2021 the rate will be 67% of an employee’s weekly salary capped at 67% of the SAWW.
While the FMLA protects employees of larger employers from losing their jobs when they need to take time off to care for relatives or bond with a new child, that leave is unpaid. FMLA leave is only legally required to be offered to employees who work for employers with 50 or more employees, while PFLIA covers all workers, regardless of the size of the employer. However, leave needed as relates to an employee's own medical conditions related to the pregnancy or recovery from childbirth will not be covered under the PFLIA. Find out what you need to know about your rights here.
*Disclaimer: The law is unsettled in this area because PFLIA will not go into effect until January of 2018.
New York State’s Disability Benefits Insurance Program
The State's Temporary Disability Insurance Program ("TDI") provides temporary cash benefits paid for illness or injury that occur off the job, and for pregnancy-related disabilities. These benefits provide a partial wage replacement for employees who need to take time off from work because of these medical conditions. In 2016, the replacement rate (based on reimbursement of 50% of a worker’s weekly wages) was capped at a measly $170 per week. For an employee who works 40 hours per week, that wage replacement equals $4.25 an hour – less than minimum wage, making it a serious financial burden for an employee who does not have other employment benefits (such as private disability insurance) to take time off when they most need to. TDI rates have not been increased in over 25 years.
Pregnant women and new mothers are eligible to receive temporary disability insurance if they have complicated pregnancies and need to be out on a medical leave, e.g. bedrest and/or to recover from childbirth; presumptively six weeks after a vaginal birth and eight weeks after a Caesarian delivery. Medical documentation is required to apply for these benefits. Find out more here.
It is important to note that the receipt of TDI does not in and of itself ensure that the recipient employee is protected from losing their job. An employee can be fired while out on TDI if the employer does not have policies granting the employee protected leave and/or the employer and employee have not negotiated a reasonable accommodation to be provided for a disabling condition, including pregnancy, childbirth and related medical conditions. Several laws may provide such protection, including the federal Pregnancy Discrimination Act of 1973 (“PDA”), The Americans with Disabilities Act, as amended in 2008 (“ADAAA”), the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”).
Leave as a Reasonable Accommodation Under Federal, State and Local Laws
Under the PDA, a pregnant employee cannot be treated differently than a similarly situated non-pregnant female or male employee. For example, if other employees are granted a leave of absence with a guarantee of holding the employee's job open for them because of medical conditions unrelated to pregnancy, then an employer cannot deny a pregnant woman a similar leave for any type of medical condition necessitating a leave of absence. Under the ADAAA, NYSHRL and the NYCHRL, an employee must be reasonably accommodated, which may include a leave of absence, for conditions related to pregnancy or post-childbirth recovery, unless an employer can prove it causes an “undue hardship.”
If you think your employer is refusing to provide you with a reasonable accommodation for your pregnancy and/or period of childbirth recovery? Call our Hotline at (888) 833-4363 to speak with someone form our legal team.