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New York’s Paid Family Leave: Employee Use of PTO

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We’ve been writing about the many changes New York employers should be preparing for in order to comply with New York’s Paid Family Leave (PFL) law. Another change that employers should be aware of is whether your employees must use their accrued PTO before taking advantage of PFL benefits.

PFL allows the employee to choose between using her accrued PTO or to take PFL. For employers, this means you can’t require an employee to use her accrued PTO before taking PFL. For employees, this means when you return from paid leave under PFL, your unused PTO must still be available for you to use for another purpose.

If an employee chooses to use her PTO instead of PFL leave, the employer can request reimbursement out of the PFL benefits owed to the employee. This is done by filing a claim for reimbursement from the PFL insurance carrier, and it must be done before the benefits are paid.

In addition, even where an employee chooses to use her PTO instead of PFL leave, she still is entitled to the other benefits of the statute, including reinstatement to the same or a similar position when she returns.

This change may come as a surprise for employers familiar with the federal Family and Medical Leave Act (FMLA). FMLA allows employers to require employees to first use up accrued PTO or personal leave for the unpaid leave.  New York’s PFL does not require this.

Employers should be aware that once PFL takes effect, their employees may take PFL while keeping the PTO that they’ve accrued. This likely will need to be reflected in your company’s policies.

We’ll continue to provide updates as details develop.

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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