By Paul J. Sweeney

On November 1, 2021, New York Governor Kathy Hochul signed legislation to expand the state’s paid family leave (PFL) law to cover siblings. Effective January 2023, the amendment will add care for a sibling with a serious health condition as a basis for the paid leave. Read on to understand how the change will affect your business.

Background

The PFL statute provides private-sector employees with up to 12 weeks of job-protected, paid time off (PTO) to (1) bond with a newborn child, including a biological, adopted, or fostered child, (2) care for a family member, such as a spouse, domestic partner, child, or parent, with a serious health condition, or (3) assist a family member who is deployed abroad on active military service.

Eligible employees may take up to 12 weeks off at 67 percent of their pay up to an “average weekly wage” cap, which for 2021 has been $971.61 per week. The payments for PFL benefits are funded through employee deductions, similar to New York’s disability benefits (DB) program.

Depending on the employer’s size, PFL (as well as enhanced DB benefits) may be available when an employee or the employee’s minor, dependent child is under a health department’s quarantine or isolation order because of COVID-19. Unless public-sector employers have opted in, the leave law would not apply to them.

What’s New

The amendment to New York’s PFL law expands the definition of “family members” to encompass siblings, including biological siblings, adopted siblings, step-siblings, and half-siblings. The siblings in need of care can live outside of the state or the country. The amendment goes into effect on January 1, 2023.

Takeaways

Update your PFL policies and anticipate employees will now take PFL leave to care for a sibling. Also, note that the concept of a “step-sibling” can be open ended.

Moreover, while the PFL can now be used to care a sibling’s serious health condition, the same care may not qualify for unpaid leave under the Family and Medical Leave Act (FMLA), which doesn’t recognize the usage. Even though the U.S. Department of Labor (DOL) under the Obama administration provided guidance that FMLA leave to care for a sibling under the age of 18 may be covered if the caregiver sibling acts in a loco parentis capacity, several federal courts have ruled to the contrary because the FMLA doesn’t expressly say so.

Confused? Consult with employment counsel on the PFL statute’s application and interplay with the FMLA.

Paul J. Sweeney is an attorney with Coughlin & Gerhart LLP in Binghamton, N.Y. Paul joined the firm following active duty as a Marine Corps judge advocate and is a partner and chair of the firm’s Labor & Employment Law Practice Group concentrating on labor and employment law and commercial litigation. He can be reached at PSweeney@cglawoffices.com or 607-723-9511.