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Worker may have to take Paid Family Leave and FMLA time concurrently

This year, New York state's new Paid Family

This year, New York state's new Paid Family Leave law provides employees with up to eight weeks of paid leave to care for a newborn or ailing relative. Credit: Getty Images/iStockphoto/designer491

DEAR CARRIE: Do you have any knowledge about how the new state Paid Family Leave law and the federal Family and Medical Leave Act interact? I have an employee who wants to take the leaves consecutively, meaning the worker would be out of work for 20 weeks, eight weeks under the state PFL and12 weeks under FMLA, causing a hardship for her manager. Also, am I correct in assuming that we can dictate that any company-granted benefits, like our paid parental leave policy, must be taken concurrently with FMLA or the state leave? — Leave Confusion

DEAR LEAVE: It’s not a given that an employee can extend the leaves by taking them consecutively. That would depend on a couple of factors, the chief of which is the reason for the leave. If the reason qualifies under both statutes, then the leaves would be concurrent.

“Paid Family Leave can run concurrently if the reason qualifies under both laws and proper notice is provided to the employee,” said employment attorney Jessica Moller, a partner at Bond, Schoeneck & King in Garden City.

More on the notification aspect later.

In the meantime, here are some examples that help explain when the leaves may be concurrent.

If the leave is to bond with a newborn, that is covered under both statutes, Moller said. So the leaves would run concurrently for eight weeks, which is the limit under the state paid leave statute this year, followed by an additional four weeks of unpaid leave under the FMLA for a total of 12 weeks, not 20. The FMLA allows eligible employees to take up to 12 weeks of unpaid leave a year.

The same would hold true for caring for an ailing spouse; the combined leaves would max out at 12 weeks a year.

It’s important to note that the state PFL, unlike the FMLA, doesn’t cover an employee’s own illness. Both allow time off to care for a newborn or ailing relative. The PFL’s definition of relatives is broader, however.

There are other scenarios in which a leave could be longer for the mother.

For example, if complications after birth qualified an employee for short-term disability benefits, and she needed them for six weeks, she could after that be eligible to take time off to bond with her baby for up to eight weeks under the state law, for a total of 14 weeks.

PFL and disability are part of the same state program. As a result, “You can’t take disability and PFL at the same time,” Moller said.

And employees cannot take more than 26 weeks of combined disability a year, she said.

So a woman who was out on disability for 26 weeks in a year would have only the FMLA to use for a leave if she gave birth that year and wanted time off to care for her newborn, Moller said.

As for notifications, the requirement for employers is key in determining whether an employee’s leave under both statutes overlaps.

Here’s how the notification process works: When employees request time off, their employer has to tell them whether the leave meets both the FMLA and PFL criteria, Moller said.

“If the employee ... is notified that the reason they want to take a leave is a qualifying reason under PFL, and the employee’s leave is properly designated under FMLA, then the employee leave will essentially run concurrently,” Moller said. “If you don’t give that notification, you cannot run the two concurrently.”

As for requiring employees to use company paid time off, such as vacation or sick days, while out on one of the leaves, an employer cannot require employees to do so, she said. But the employee could request it.

Whether you can require the employee to use your parental-leave time off concurrently would depend on whether that benefit is something that your employees accrue or whether you just give them the days, Moller said.

CORRECTION: An earlier version of this article misstated the maximum amount of leave a worker would be entitled to this year if she goes out for six weeks on short-term disability and later qualifies to take time off under the state Paid Family Leave law to care for a newborn. 

Go to bit.ly/PFLfacts for more employer information about the state’s Paid Family Leave law.

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