Expansion of New york State Paid Family Leave Law

New York State’s Paid Family Leave Program (PFL) is an insurance program administered by the state that enables workers in New York to take up to 12 weeks of paid time off in order to care for a seriously ill family member, bond with a new child or to address certain issues related to family members’ military service. The program is entirely funded by employees; employers do not have to pay employees’ salaries while they are on leave. Under PFL, employees who take leave will be guaranteed job protection. Employers must hold the employee’s position until he or she returns to work, or must offer a comparable position with equivalent seniority, status, employment benefits, pay and other terms and conditions.

Under the original law, workers were able to take paid time off in order to care for a seriously ill family member. Originally, the legal definition of “family member” included children, grandchildren, spouses, domestic partners, parents, parents of spouses or partners, siblings or grandparents. Now, the legal definition of “family member” has recently been expanded to include siblings. On November 1, 2021, Governor Kathy Hochul signed a bill (S.2928-A/A.06098-A) that expands New York State's Paid Family Leave legislation to allow caring for siblings (biological or adopted). The bill will go into effect on January 1, 2023.

This bill builds upon the Paid Family Leave legislation that was enacted in 2016, which created one of the most comprehensive paid family leave programs in the nation. In effect since 2018, New York's Paid Family Leave program is employee-paid insurance that provides workers with job-protected, paid time off to bond with a newly born, adopted or fostered child; care for a family member with a serious health condition (which may include severe cases of COVID-19), or assist loved ones when a member of the family is deployed abroad on active military service. Paid Family Leave may also be available in some situations when an employee or their minor, dependent child is under an order of quarantine or isolation due to COVID-19. Eligible workers may take up to 12 weeks off at 67% of their pay (up to a cap) to care for family members in times of need.

The strong bond siblings share is undeniable. For many individuals siblings may be the only family member available to assist and provide health care in their time of need and it has happened so often during the COVID pandemic.

Why A Company Must Invest in their Employees

As a lawyer dedicated to not only keeping my client’s business running and in compliance with the law, I am often called upon to advise executive level personnel and corporate HR Departments on what needs to be don’t to increase employee morale as well as relations between management and staff . Properly paying an employee for their value to the  company is a very good start but is not the end all to be all. Employees need more than a salary and fulfilling work to do their best work. They need to know that you see the value in them as individual, in the work they perform and the value they add to the company. Here are some very easy ways to break down the barriers between management and staff and to show employees that you care:

1. Get to Know each employee.

Getting to know who works for you, who they are, what they do, what they can do for your company, what they have done in previous jobs and what they do better than anyone else is an important step in building strong, trusting relationships. It will also help show your employees how much you value them and care – not just what they have done for you lately. Seek to build a better relationship with each employee by developing a genuine interest in who they are as people and what they are passionate about, even if this means a discussion about something other than work.

2. Provide ongoing and constructive feedback.

To help your employee be the best they can be, it is important to provide feedback to them on a regular basis. Your employees will become even more valuable to you when they are constantly refining, improving, and building new skills. Feedback will fuel to performance improvement. It is imprudent to wait for the annual review to tell them how they are doing. 

3. Invest in your staff.

Know what your employees need to succeed and give them the time and resources needed to do it. You need to get to know your staff and understand their talents as well as help to develop such talents and encourage your employees to do so on their own as well. If the training and learning they need to deliver greater value doesn’t exist inside your company, you must be ready, able and willing to fund external training.

4. Prepare Employees to Succeed and Risk Losing Them.

No CEO or COO wants to lose their best people, but by preparing your employees to succeed and advance means you have to take the risk of losing them. Either way, the investment in your employees shows your commitment to them and to your company because you’re doing the right thing for both, even if it eventually creates a need to fill that person’s shoes when they leave. The risk of losing a star employee is worth the payoff of working with the best in the business, even if they don’t stay forever.

5. Set clear and measurable expectations.

For your people to succeed, they need a clear understanding of what you need them to do and how success will be measured. And in the dynamic world of work, that means providing regular updates and performance reviews. An annual conversation about performance and planning is simply insufficient.

6. Make time for them.

It is hard for the CEO, COO or HR rep to devote time to each employee, but it is essential for them to know that you have their back. Group team meetings are simply not enough and prevents building deep relationships with your employees. Take time to meet with each employee individually as often as possible and be fully attentive when you do so.

7. Acknowledge them publicly.

Sure, you likely praise your employees accomplishments during your personal meetings. To deliver even greater value, acknowledge them in meetings in front of their co-workers, and in front of senior leaders they are looking to impress. This shows your true commitment to not just your employees but also to other important persons in your organization.

8. Say the tough stuff.

You need to tell employees when they have a behavior that will limit their career advancement, or what the consequences will be if they don’t resolve a major issue. Failure to do so can be just as harmful to a company as not acknowledging their accomplishments.

9. Give them an opportunity to use their superpowers. 

We all love doing the things we are good at and sometimes a business doesn’t take advantage of that. People doing things they excel at will help deliver exceptional value while feeling fulfilled. To help your employee use their superpowers, you need to help them unearth them, and then you need to help them find situations and projects in which they can leverage their strengths.

The landscape in the workforce is rapidly changing. The old school methods of doing business where the separation between staff and management is wide is a detriment to the ongoing vitality of not only each employee, but the company as a whole. I always stick by the old adage of you treat someone as you would like to be treated. This applies not just in the workplace, but in life as well. 

HR Departments Should Review Uber's Conduct as a Precautionary Tale.

We have all seen the news coverage of the sexual harassment and discrimination problems at Uber. According to reports, Uber has long suffered from a culture of pervasive sexual harassment and discrimination toward female employees. The issues first came to light publicly in February, when one former Uber employee published a blog post about the sexual harassment that she and other women experienced at the company.

Based on the information available, it appears that the problem at Uber did not stem only from the harassers themselves. Rather, the problems stemmed from a misguided Human Resources department that allowed the problems to go unchecked, despite receiving multiple reports of sexual harassment and discrimination from female employees.

According to reports, when a female employee reported harassment or discrimination to Uber’s Human Resources department, she was more likely to be chastised by HR than to have her concerns addressed. According to allegations, HR representatives told employees who reported such issues that, because the conduct complained of was the harasser’s “first offense” and the harasser was a “high performer,” he would receive a warning, nothing more. HR allegedly told one woman (the author of the February blog post referred to above) that the fact that she had made multiple complaints indicated that it was she, not the male employees she was reporting, who was the problem.

If true, these allegations suggest that Uber’s HR department believed that its highest priority was to protect “high performers” at all costs, even if that meant allowing sexual harassment to run rampant within the company. Generally, when an HR department adopts such an outlook, it comes from the top. HR staff who believe that management expects them to protect harassers and sweep complaints under the rug will, quite often, do so. Like any other employee, an HR rep wants to keep his or her job.

That is why it is imperative that management sets the tone for a company’s culture. HR must receive clear directives that harassment and discrimination are not to be tolerated, and employees must be made to feel that any issues they report will be taken seriously and dealt with appropriately. These messages must be conveyed through both the words and actions of management. HR must understand its role to be a watchdog for compliance issues and an advocate for employees, not a puppet of management.

Uber has terminated at least 20 employees in the fallout from the sexual harassment and discrimination scandal, and its CEO has resigned. Clearly, the company will be feeling the impact of the scandal for quite some time. Any company that has not taken proactive steps to assure that its HR department understands its true purpose and role should view this story as a cautionary tale.

Your Corporate Counsel…Doctor Or Fireman?

I believe in the old saying that an ounce of prevention will prevent a pound of cure. A little precaution before a crisis occurs is preferable to a lot of fixing after afterwards.  To put it another way, I believe a lawyer can either serve a corporation as being a doctor or fireman. If a corporation looks at a lawyer as a doctor, then they will seek effective legal counsel before there is a problem for the specific purpose of preventing a problem before it occurs. This is akin to yearly checkup at your internist’s office. On the other hand, some corporations treat a lawyer as a fireman. In other words, some corporations only seek out legal counsel when there is a problem (a.k.a. fire) and then the lawyers placed in the difficult position of having to act like a fireman, triage the problem, act quickly and effectively and hopefully put out the fire. Of course, is much more expensive to have the fire department responded fire than it is to go to your doctor's office for periodic checkup. There is no difference in the corporate world. If you want to prevent the problem, then the leaders of the corporation must decide whether they want to ensure compliance with the law by hiring the proper professionals or if they want TO take the risk of noncompliance and deal with the prospect of costly lawsuits. While the cost of compliance with the law is never cheap, the cost of noncompliance is often greater than the cost of compliance

Companies Should Consider Outsourcing Their Organizations HR Compliance Functions

For both small and midsized companies, effective human resource management is critical to success — especially in today’s competitive business climate. HR management is a complex, ever-changing discipline burdened with trials that impact employee productivity, HR compliance, and ultimately, the bottom line. Company HR managers and those who deal with HR corporate compliance must look at six key areas: hiring, payroll, benefits, employee relations, risk & safety and employee relations. Since HR compliance lies at the heart of effective human resource management, it is alarming to discover that most HR managers either express concern about their ability to comply with HR laws and employment laws or know that they are not in compliance with the law, but do not know what to do about it.

Companies Often Lack Confidence in their Organizations’ HR Compliance Capabilities

Locating and hiring qualified HR Managers should be a top business concern for many corporations.  Most companies have a moderate or slight level of confidence — or even no confidence at all — in their ability to comply with important HR and employment laws, rules and regulations. This is very troubling, especially considering the fact that most legal problems can be avoided with an ounce of prevention.

HR Compliance Challenges Are Expected to Increase Moving Forward

HR managers should expect the compliance legal landscape to become even more challenging over the next one to three years. Given their compliance concerns — both today and looking forward — it’s not surprising that the vast majority of companies seeks professional legal advice to address compliance issue and would even consider outsourcing their HR function entirely.

Where HR Managers See Room for HR Compliance Improvements

In my experience, many HR managers are less than confident with regard to compliance in noteworthy aspects of hiring, employee relations, and risk & safety. Non-compliance in these areas could put small and midsized businesses in jeopardy of FLSA and OSHA violations, as well as employee grievances. 

Taking Steps to Minimize HR Compliance Risks

Given the risks associated with non-compliance, companies should consider taking steps to address any HR compliance issues sooner rather than later. With employee litigation — and compensatory awards — on the rise, companies face major potential legal liabilities if they fail to comply with HR and employment laws, rules and regulations. Statistics compiled by Jury Verdict Research show that employment lawsuits have risen 400 percent in the last 20 years, with the average compensatory reward in federal employment cases now exceeding $490,000. For small to midsized businesses, these statistics highlight the need to address any compliance concerns, even if that means seeking guidance from third-party professionals or outsourcing the HR function entirely. 

Addressing HR Compliance Issues is Key to Effective Human Resource Management 

In order to achieve a competitive edge, today’s business are striving to operate as efficiently and cost-effectively as possible while maintaining HR compliance and attracting and retaining top talent. However, HR managers are recognizing the challenges of complying with complex, dynamic HR laws and employment laws. Since shortcomings in key areas of HR compliance can put businesses at a competitive and financial disadvantage, it only makes sense that small and midsized companies use the many effective tools and services available to become — and stay — compliant.

Conclusion

A little precaution before a crisis occurs is preferable to a lot of fixing after afterwards.

FMLA-CHALLENGES TO MEDICAL CERTIFICATION

One basis for requesting leave under the Family and Medical Leave Act (FMLA) is the employee’s own “serious health condition” that renders them unable to perform the functions of the job.  When requesting leave under the Family and Medical Leave Act due to a “serious health condition”, the employee must tender to the employer a medical certification of the condition.

Some employers have found abuse of this procedure by employees, especially through the use of primary care physicians.  If the employer has “reason to doubt the validity of a medical certification”, the employer can request that the employee obtain a second medical opinion, at employer expense.  The employer can choose the health care provider rendering the second opinion, but can not regularly contract with, or use the services of that health care provider. 

The employer may not contact the employee’s health care provider, but the employer’s retained provider chosen to render the second opinion may make contact for limited purposes.  

If the second opinion conflicts with the opinion of the employee’s health care provider, a third provider jointly selected by the employer and employee will render an opinion that is final and binding.  The employer is responsible for the employee’s costs of the third opinion (travel, etc.).  While the above review is on-going, the employee shall have provisional FMLA leave.

If an employer decides not to challenge the medical opinion, or the result of the above procedure is confirmation of a serious medical condition supporting the basis for FMLA leave, an employer can request re-certification no more often than every thirty (30) days unless there is a significant change in circumstances, or the employer receives information to cast doubt on the certification.