New York State’s New Paid Family Leave Law Is the Strongest One Yet

New York State’s New Paid Family Leave Law Is the Strongest One Yet

When Torry from Yonkers, New York had her baby girl in 2015, she was shocked to learn that she didn’t have maternity leave. She destroyed her credit rating trying to make ends meet with credit card purchases while she took unpaid time to care for her daughter and suffered emotional stress on top of the financial stress. She was anxious and had trouble sleeping throughout her daughter’s first year of life. She shared her story with the legal experts and advocates at A Better Balance, an advocacy leader on the issue, in hopes it would help them to make the case for paid family leave in New York. Her story, and many like it, contributed to convincing New York’s lawmakers that they needed to take action.

When Governor Cuomo signed New York’s paid family leave bill in 2016 (the Paid Leave Law), he talked about how he wished he had spent more time with his Dad, former governor Mario Cuomo, when he was seriously ill at the end of his life. He notes that family should come first—over work. Millions of New Yorkers will now be able to put family first.

On January 1, 2018, New York became the fourth state in the nation to enact paid family and medical leave, joining California, New Jersey, and Rhode Island in providing this guarantee that people won’t have to choose between their families and their paycheck. Washington, D.C. and Washington State have also passed paid leave laws, but neither has gone into effect yet. While all of these laws demonstrate a commitment to valuing families, of those already in effect, New York’s is the most comprehensive.

The American dream includes the idea that you can be there for your family without sacrificing your paycheck to do it. Yet the lack of care resources in the United States puts a lot of pressure on individuals, and especially women, who are still the primary caregivers in many families. Today most women are working both inside and outside the home and most families rely on the paychecks. Paid family and medical leave laws ensure that people can care for expanding their families (having babies or welcoming an adopted or foster child) or for serious illnesses—their own or a loved one’s.

As I discuss in “Tech Companies Are Leading the Way on Paid Family Leave,” a strong, comprehensive paid family and medical leave policy can improve the health of mothers, babies, and family members who have the benefit of loved ones to care for them. It contributes to better parental bonding and child development. Furthermore, a policy that includes mothers and fathers contributes to greater gender equality, and one that includes diverse families creates greater equality for LGBTQ individuals, among others. In addition, the financial benefits of having paid leave can reduce income inequality and increase family stability.

New York’s lawmakers, and the advocates who worked to help pass the bill, had the benefit of having as models the paid leave policies in California, New Jersey, and Rhode Island, which have been in effect since 2004, 2009, and 2014, respectively. These laws have helped make paid leave more understood and accepted. Lawmakers and advocates also had the benefit of learning from what’s worked and what hasn’t. (The new laws in Washington, D.C. and Washington State, and amendments made to California’s law in 2013 and 2016, are more progressive than the earlier state laws, as well). As a result of those lessons, and of the willingness of the elected officials involved to commit to a more ambitious policy, the New York law is stronger than those that came before it in a number of significant ways, chiefly: more time to care; job protection; near-universal inclusion; and the provision of resources for public education and outreach.

More Time to Care

Kate B. in Brooklyn, New York told the lawyers at A Better Balance that she “started working soon after my baby girl was born. It wasn’t good for her and it wasn’t good for our family, but we couldn’t get by without the income.”

New York’s new paid family leave law guarantees the longest duration of paid time to care of any such law to date. The law guarantees twelve weeks once fully phased in (by 2021). For two-parent families, this is twenty-four weeks to care for a new baby, or newly adopted or foster child. The phase-in starts at eight weeks this year—for two-parent families—then expands to ten weeks in 2019 and 2020, or twenty weeks for two-parent families. In 2021 the full twelve weeks per parent comes into effect, and then twelve weeks in 2021, which, with twenty-four weeks for babies in two-parent homes, is by far the most in any state: California and New Jersey both guarantee only six weeks, and Rhode Island’s policy is for just four weeks. When Washington State’s new law is in place it will match New York’s twelve weeks; and Washington, D.C. will cover eight weeks for a new child and six weeks to care for a seriously ill family member.

In Comparison with Federal Laws and Proposals

The inclusion of twelve weeks to care makes New York’s law the strongest of any law in place to date, and only matched by Washington State, which will be in effect in 2020. The law also parallels the federal Family and Medical Leave Act (FMLA), which has been in place since 1993 to guarantee twelve weeks of unpaid, job-protected time to care for people who work for larger employers (fifty or more employees). The federal FAMILY Act, legislation introduced by Senator Gillibrand (D-NY) and Congresswoman Rosa DeLauro (D-CT) would build on the FMLA, guaranteeing paid time to care—also for twelve weeks. This bill has widespread support among Democrats and independents in Congress (no Republicans have yet signed on), among Democrat and Republican voters, and from small businesses.

The original policy idea for the FMLA was for six months of job-protected, unpaid leave, a plan that was first considered as part of the Family Employment Security Act (FESA) of 1984. While the plan was ultimately not introduced as part of that bill, FESA did serve as the beginning of the legislative conversation. Making it paid was considered important, but not yet a viable proposal. When the FMLA bill was introduced in 1985, as the Parental and Disability Leave Act, it included eighteen weeks for unpaid parental leave and twenty-six weeks for an employee’s own serious health condition. The final FMLA’s twelve weeks is the result of legislative compromise, not medical or child development recommendations.

Parental bonding, positive child outcomes, and better overall health require longer durations of leave than twelve weeks. Most countries guarantee more than twelve paid weeks, at least for maternity care: in fact, the average time for the Organisation for Economic Co-operation and Development (OECD) nations is nineteen weeks. Studies have found that countries that guarantee longer paid maternity leave have seen better outcomes for child health, infant mortality, breastfeeding, and maternal health. Dr. Bernard Dryer, a developmental and behavioral pediatrician at the New York University School of Medicine and former president of the American Academy of Pediatrics, has said, “there is research that shows parental leave is better the longer it is. There’s no cutoff for the increased benefits of longer leave… if I were to suggest it, I’d say six to nine months should be the minimum.” New York’s twenty-four weeks for babies—split between two parents—will get closer than any other U.S. state has come to date.

In addition, patients who have loved ones there to care for them also do better. For example, the presence of a parent has been shown to decrease a child’s hospital stay by 31 percent. And for older adults, according to the National Partnership for Women & Families, “Paid leave provides employed family caregivers dedicated time to coordinate care and learn complex tasks, prepare for potential long-term care needs and help their families adjust…” Family members not only provide comfort and care, but can also serve as patient advocates when needed and help drive better results for their loved ones.

Protects Jobs

Before New York’s new law went into effect, Suzanne in New York City tried to negotiate a leave plan with her employer of ten years when she had her son. When she asked them to extend her leave they fired her. Suzanne explained, “I simply wanted to spend a few more weeks with my newborn son and make a slower transition back to work. I wasn’t ready to give my baby a babysitter and I had no family member living close by who could help.”

As mentioned, the federal FMLA protects jobs for people who work for large employers (fifty or more employees) and have worked for at least 1,250 hours in the last twelve months, and at least twelve months total for their employer, for up to twelve weeks of family or medical leave. For employees who don’t work for large employers, or are otherwise not covered, the experience of expanding their families, or managing their own or a loved one’s serious illness, should not include the added stress of risking losing a job. But for about 40 percent of the workforce nationally, it does. In contrast, New York’s new law not only guarantees that people can return to the same or a comparable job after leave ends, but also protects people who request or take leave from retaliation or discrimination. The state has also created a transparent process for responding to complaints of noncompliance, retaliation, and discrimination.

While Rhode Island provides job protection, California and New Jersey do not as part of their paid leave programs, beyond the FMLA and existing state laws, nor do Washington State’s or Washington, D.C.’s new laws. None of the laws, including New York’s, include job protection for people who take leave to care for their own serious illnesses beyond FMLA. However, the new protection for people who take time to care for new babies, newly adopted children, and seriously ill family members will mean that people no longer have to choose between the job they need and the family they love.

However, the new protection for people who take time to care for new babies, newly adopted children, and seriously ill family members will mean that people no longer have to choose between the job they need and the family they love.

Most Inclusive

New York’s new law is the most inclusive to date. It encourages gender equality, supports LGBTQ families, reconizes the challenges faced by military families, and acknowledges the widespread need for paid time to care no matter who your employer is. It also includes people working as contractors or for themselves.

For Families

New York’s new law guarantees paid time for parents to care for a newborn, newly adopted child, or a foster child. Ensuring that both mothers and fathers have equal time to care supports men’s caretaking participation and women’s workforce participation. Gender equality depends on men increasing their caretaking roles and women having the family supports in place to fully participate in work. New York joins the other state laws in recognizing the equal importance of mothers and fathers in being there for new children.

For medical leave (time to care for a loved one with a serious illness), New York’s new law covers a child, parent, parent-in-law, spouse, grandchild, grandparent, or domestic partner. “Domestic partner” is broadly defined as “any person who is at least eighteen years old and ‘is dependent upon the employee for support as shown by either unilateral dependence or mutual interdependence, as evidenced by a nexus of factors including, but not limited to, common ownership of real or personal property, common householding, children in common, signs of intent to marry, shared budgeting, and the length of the personal relationship with the employee.’” This broad definition is particularly important to LGBTQ families. While marriage equality has granted essential legal rights, because the right to marry has only been in place nationwide since 2015, some of the LGBTQ couples interested in marriage have not yet fulfilled that formalization of their relationship, and this provision gives them important rights. Similarly, many committed partnerships and families, LGBTQ and straight, do not have marriage as a goal; and furthermore, many people rely on extended families or roommates and close friends to act as family. This provision will cover many of those support and alternative familial situations as well.

New Jersey’s law is the least inclusive, leaving out adult children, in-laws, grandparents, and grandchildren. Rhode Island’s law is similar to New York’s, but does not include grandchildren. California’s law was amended in 2013 to include grandparents, grandchildren, siblings, and parent-in-laws.

And for Military Families, Too

When a family member is deployed, it can cause challenges for child care arrangements, generate legal, financial, or emotional issues, or otherwise create new, urgent responsibilities. While the federal FMLA includes unpaid job-protected leave for military families, until this year, none of the existing state paid leave laws did. New York’s new law makes it possible to take time to assist loved ones when a family member is deployed abroad on active military service. Specifically, New York’s law ensures time to address urgent needs like alternative child care arrangements, military briefings, and legal and financial responsibilities when a loved one is is deployed abroad on active military service or has been notified of an impending military deployment abroad. Washington State will become the second state to provide this coverage when its new law starts paying benefits in 2020.

For Employers of All Sizes

While the federal FMLA limits coverage to employers with fifty or more employees, each of the state paid leave laws are more inclusive. The four laws currently in place all cover most private-sector employees with no carve-out for employee size. In fact, people who work for private-sector employees are covered by the new law, no matter the number of people employed. In New York, public employers and unions representing public sector employees can opt in. Rhode Island and California have similar laws, and in New Jersey public-sector employees are covered for paid family leave.

Domestic Workers, Independent Contractors, and the Self-Employed

Full-time domestic workers like nannies, house cleaners, and home health aides are covered by New York’s new law. California also includes domestic workers and New Jersey and Rhode Island include some domestic workers.

Furthermore, as the gig economy grows, so does the concern that not having a W2 means not having additional sources of security and stability. But in New York and three other states, paid leave has been established as a portable benefit to ensure that regardless of tax status, people can afford to take the time they need when they need it. New York, Washington State, and Washington, D.C. have all followed California’s lead in ensuring that self-employed and independent contractors can opt in to the paid family leave program.

Of note, not everyone will be able to use this new law. Public-sector employees whose employers or unions do not opt in will not be covered. This is especially of concern for teachers, many of whom are women. Teachers in NYC have already been fighting to be included in the city’s paid parental leave policy for public employees, which excludes the union workforce, allowing them to collectively bargain for leave. With the new state law, they will have to rely on their union or non-unionized charter schools to opt in on their behalf. In addition, part-time domestic workers who don’t work for a staffing agency are not covered. Finally, employees who live in New York, but who work out of state for an out-of-state employer, will not be covered by the new law.

Provides Resources for Public Education and Outreach

New York has put more resources into public education to ensure a successful first year than have the other states with paid leave laws. A new report from the Community Service Society of New York details this effort and describes its strengths:

Starting in December 2017, New York State launched a robust advertising and outreach campaign to inform the public about their new right to paid family leave. It will include subway and bus ads, webinars, public service announcements, brochures, a website, a telephone helpline, posters, events, social media, fact sheets and FAQs geared to various constituencies, and earned media coverage. The state regularly seeks advice and feedback from paid family leave advocates who are invested in raising awareness about the law they worked to pass. Many of these groups are engaged in their own outreach efforts, running television ads, conducting trainings and webinars, as well as getting the word out among their networks, members, and constituencies. All this adds up to a much bigger investment in outreach, more than other states have done to launch paid family leave.

In contrast, California, Rhode Island, and New Jersey invested fewer resources into outreach and public education and, as a result, it took a long time for employees to learn about the policies and even longer for them to start to use them. For example, a survey of the California law conducted in 2010 (six years after it went into effect) found that while all the people surveyed had experienced a relevant life event that they could have used paid family leave for, more than half didn’t know it existed. Immigrants, Latinos, and those paid low wages were the least likely to know about it.

In 2014, California invested in a more robust, three-year public education campaign to improve take-up rates. Their “Moments Matter” ad campaign includes some powerful education efforts linked to ways to get more information about accessing paid time to care. The campaign is a reminder to New York, Washington State, and Washington, D.C. that ongoing public education efforts are important for a successful program.

Making Time to Care Affordable

While New York is the strongest law enacted to date in the ways thus far described, it’s useful to note that its wage replacement provision only matches or is less generous than the provisions in other states.

For example, in terms of making time to care affordable, when fully phased in by 2021, New York’s paid family leave will ensure people can recover two-thirds of their wages up to a maximum. The phase-in starts at half, replacing an employee’s weekly wages up to 50 percent of the state’s average weekly wage, or $652.96 per week. This is somewhere in the middle of the other states with leave policies.

The low wage replacement, especially in the first year of enactment, may remain a barrier to using paid leave at all, or for the full length of time available. A study of California’s leave policies in 2009 and 2010 found that even when people were aware of the policy, nearly a third of respondents did not apply for it when they needed it because of the low wage replacement rates. Similarly, in New Jersey, researchers found that the most common reason for not applying for paid leave, even when people qualified for it, was the “unwelcome drop in income.” Another California study found that eligible mothers took paid family leave at a rate of between 25 and 40 percent and that the women who took leave had higher incomes ($10,000 higher) than the median income for California’s working women.

For low-paid employees who are struggling to pay their bills, receiving only a portion of their wages may still mean an impossible decision between caring for loved ones and making ends meet. For these reasons, it is worth looking to a more progressive wage replacement model—like the one adopted in Washington, DC—to ensure that everyone who needs to take time to care for their families can afford to do so.

What’s Next

New York’s new paid leave law is off to a great start. Now employers have to thoroughly and effectively implement the new policy, and employees need to use it. As we look to what’s next, some things to consider include: ongoing outreach and public education investments; exploring an even longer duration of leave; and making the wage replacement system even more progressive so that people with lower incomes are able to replace more of their wages and thereby truly be able to afford leave. In the meantime, New Yorkers should feel good that this new law truly values families, and sets a strong example for the larger national effort to pass the FAMILY Act.

Source: https://tcf.org/content/commentary/new-york-states-new-paid-family-leave-law-strongest-one-yet/