The introduction of the NYPFL places a number of new requirements on employers. As referenced above,
employers must obtain NYPFL insurance by either purchasing the insurance from an approved insurance
carrier or self-insure. All insurance carriers that provide coverage pursuant to the New York Disability
Benefits Law (“NYDBL”) must also provide NYPFL coverage. Employers should contact their NYDBL
carrier prior to January 1, 2018 to discuss NYPFL coverage options.
In addition to requiring employers to purchase paid family leave insurance, the NYPFL requires
employers to update their employee handbooks to include written guidance on paid family leave. The
handbook must include all of the employee’s rights and obligations under the regulations, including
information on how to file a claim for paid family leave. If an employer does not maintain an employee
handbook, it is still required to provide written guidance to employees on the paid family leave benefits.
In addition, employers must also post a notice concerning paid family leave in plain view where
employees and applicants can readily see the notice.
Further, employers will need to develop mechanisms for when any portion of its workforce elects to take
a paid family leave. The employer must manage the challenge of the employee’s absence while, at the same
time, holding the employee’s position for their return. Employers are encouraged to look into temporary
employees and cross-train employees so that they are prepared to fulfill a variety of positions as needed.
Employers will also face the additional hurdle of tracking the amount of leave utilized by an eligible
employee. Employers must communicate with their employees and payroll systems to develop internal
systems to record all paid leave taken by each employee under the NYPFL. Two memoranda providing
further information on the NYPFL are available here.
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24-Hour Live-In Pay
In the last two years, a number of New York court cases relating to 24-hour “live in” home
care attendants have generated considerable alarm, confusion, and anxiety regarding proper
compensation of live-in caretakers. The primary issue is the applicability of the NYSDOL
residential exception to the minimum wage law, which provides that residential employees
need only be paid for 13 hours of every 24-hour shift (“13-hour rule”). Under the 13-hour
rule, the employee must be afforded eight (8) hours for sleep, five (5) of which must be
uninterrupted, and be afforded three (3) uninterrupted hours for meals.
Recently, two New York State appellate courts rejected the “13-hour rule” as applicable
to home care non-residential attendants (home care attendants who maintain their own
residence), concluding that these employees are entitled to be paid the minimum wage for
all 24 hours of their shifts, regardless of whether they were afforded opportunities for sleep
and meals. 1
Understandably, these court rulings resulted in considerable fear that home care agencies
would suffer from a tremendous financial strain as a result of being forced to compensate
non-residential home care employees for 24-hours a day of work and incur significant liability
from class-action lawsuits for past employee compensation.
(continued)
Tokhtaman v. Human Care, LLC et al., 2016 N.Y. Slip Op. 31606(U) (Sup. Ct. N.Y Cnty. August 22, 2016), aff ’d, 149
A.D.3d 476 (1 st Dep’t Apr. 11, 2017); Andreyeyeva v. New York Health Care, Inc., 45 Misc.3d 820 (Sup. Ct. Kings County
Sept. 16, 2014), aff ’d 153 A.D.3d 1216 (2 nd Dept. Sept. 13, 2017); Moreno v. Future Care Health Services, Inc., 2015 N.Y.
Slip Op. 31752(U) (Sup. Ct. N.Y Cnty. May 5, 2015), aff ’d 153 A.D.3d 1254 (2 nd Dept. Sept. 13, 2017).
1
leadingageny.org
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