Developing Parental Leave Policies for Companies with Less than 50 Employees

There are three forms of parental leave that are applicable to most companies with less than 50 employees. Below is recommended language to include in such parental leave policies:

New York State Paid Family Leave (“PFL”)

Although FMLA leave does not apply to a company with under 50 employees, such companies must still offer New York State Paid Family Leave (“PFL”) benefits, which apply to most employees in New York State. Employers should include a written paid family leave policy in their employee handbook. The handbook policy should include the following information, which reflects the duration and amount of compensation effective in 2021:

Under PFL, both male and female employees are entitled to take up to twelve (12) weeks of paid leave in order to: (a) care for a family member (including a child, parent, grandparent, grandchild, spouse or domestic partner) with a serious health condition; (b) bond with a newborn or adopted or foster child during the first 12 months following birth or placement; and/or (c) address issues relating to a spouse, domestic partner, child or parent who is serving in the military. Pursuant to Workers Compensation Law § 204(2), PFL benefits will increase to 67% of the employee’s average weekly wage, not to exceed 67% of the statewide average weekly wage ($1,450.17), which is $971.61 per week, for up to 12 weeks of leave.

New York State Paid Sick Leave Law

Another form of parental leave that applies to employers with less than 50 employees is the new paid sick leave law. The New York State Department of Labor (“DOL”) recently issued guidance to Section 196-b of the New York Labor Law, with respect to the new paid sick leave law that is fully effective January 1, 2021. The new law requires New York State employers to provide specific amounts of accrued sick leave based on the size of the employer.

For employers that have four or fewer employees in any calendar year and a net income of $1 million or less in the previous tax year, the employer must provide each employee with at least 40 hours of unpaid sick leave each calendar year. For employers that have four or fewer employees in any calendar year and a net income of more than $1 million in the previous tax year, the employer must provide each employee with at least 40 hours of paid sick leave each calendar year.

For employers that have between 5 and 99 employees in any calendar year, the employer is required to provide each employee with at least 40 hours of paid sick leave each calendar year.

Employees must accrue sick leave at a minimum rate of no less than one hour per every 30 hours worked, beginning at the commencement of their employment or the effective date of the law (on or about September 30, 2020), whichever is later. Employees may also have their paid sick leave front-loaded at the start of the year. The DOL also advised that an employee may choose to use sick leave during PFL if the employer allows it. Taking sick leave at the same time as PFL may allow the employee to receive their full salary for all or part of the leave. However, an employee cannot receive more than their full wages while receiving PFL benefits.

Families First Coronavirus Response Act (FFCRA)

Additionally, a temporary employee handbook policy may be created to account for a different form of parental leave through the Families First Coronavirus Response Act (FFCRA). The FFCRA requires certain public employer and private employers with fewer than 500 employees to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.

If an employer chooses to prepare an employee handbook policy with respect to FFCRA leave, they should note that this is only a temporary form of paid leave and that it is set to expire on December 31, 2020.

Small Business Exemption

Businesses with less than 50 employees may opt out of offering FFCRA leave if certain conditions are met, if offering FFCRA leave “would jeopardize the viability of the business.” There are a number of factors an “authorized officer” of the business must exercise in order to qualify for the small business exemption.

For example, small businesses may opt out if FFCRA leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity.

Another factor would be if the absence of employees requesting FFCRA leave would entail a substantial risk to the financial or operational capabilities of the business because of the employees’ specialized skills, knowledge of the business, or responsibilities.

The last factor would be to determine whether there are not sufficient employees who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employees requesting FFCRA leave, and such employees’ services are needed for the small business to operate at a minimal capacity.

Health Care Professional Exemption

Health Care Professionals, defined to mean employees who are health care providers or employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care, can be carved out of employee handbook policies addressing FFCRA leave since they are exempt from taking such leave.

We previously issued a legal briefing that provides a more detailed definition of a health care professional under the FFCRA, which is found here: https://www.lawpf.com/post/revised-ffcra-rules-clarify-paid-leave-and-more-fully-define-the-meaning-of-health-care-provider

Recent guidance from the federal Department of Labor (“DOL”) reaffirmed that employer approval is needed to take FFCRA leave intermittently in all situations in which intermittent FFCRA leave is permitted, which is consistent with longstanding FMLA principles governing intermittent leave. Since employer permission for telework is a precondition under the FFCRA, the DOL found it is also an appropriate condition for teleworking intermittently due to a need to take FFCRA leave.

The DOL also explained the definition for “School Closing” for hybrid-learning under the FFCRA, advising each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. An employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that). Intermittent leave is not needed in such hybrid circumstances because the school literally closes (as that term is used in the FFCRA and 29 CFR 826.20) and opens repeatedly.

The DOL revised § 826.100(a) to clarify that the information the employee must give the employer to support the need for his or her leave should be provided to the employer as soon as practicable, which in most cases will be when notice is provided under § 826.90. An employer may require an employee to furnish as soon as practicable: (1) the employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work.

The DOL also revised § 826.90 to correct an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to his or her employer. If the need for leave is foreseeable, it will generally mean providing notice before taking leave.

If the need for expanded family and medical leave was not foreseeable—for instance, if that employee learns of the school’s closure on Tuesday after reporting for work—the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.

Our Firm has extensive experience counseling employers and businesses on employee and labor law issues, and preparing applicable employee policies, particularly relating to the evolving regulations during the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.

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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC