On October 6, 2021, the New York Workers’ Compensation Board adopted a revised regulation addressing the amount of intermittent Paid Family Leave (“PFL”) that is available to employees who work more than five days per week. The revised regulation becomes effective January 1, 2022, and is not retroactive.
Under existing regulations, employees who are qualified for PFL may take up to 12 weeks of such leave during a period of 52 consecutive weeks. Employees are not required to take PFL all at once and may elect to take it in full day increments on an intermittent basis. When taking PFL on an intermittent basis, the maximum days of PFL that an employee may take is determined by multiplying the average number of days he or she works per week by 12, but in no event more than 60 days of PFL per 52-week period for employees working at least five days per week. As a result, an employee who works more than five days a week is currently capped at 60 days per 52-week period.
Under the revised regulation, the 60-day cap has been eliminated, and employees who work more than five days per week will be eligible to take additional intermittent PFL once the revised regulation takes effect. Without the cap, employees who work six days per week will become entitled to 72 days of PFL to be used intermittently in a 52-week period, and employees who work seven days per week will become entitled to 84 days of PFL to be used intermittently in a 52-week period.
The revised regulation does not affect employees who work five or fewer days per week but will greatly increase the days of intermittent PFL leave available to employees who do work in excess of this amount. Employers who have employees working more than five days per week should take note of this change and take steps to ensure compliance with the revised regulation when it becomes effective.