Federal & State Regulations | FMLA - New York | J. J. Keller® Compliance Network

Summary of differences between federal and state regulations

In addition to the federal FMLA, New York employers also need to be aware of employee leave provisions regarding job protection for lawful leave, sick leave, child care, paid family leave, domestic violence, blood donation, bone marrow donation, military spouse leave, leave for emergency responders, paid parental leave for state executive branch employees, and line of duty leave.

Lawful absence law

NY employers are prohibited from assessing any demerit, occurrence, or any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action for taking any legally protected absence under federal, local, or state law. Therefore, any leave allowed under such laws is job protected.

This also means that employers are prohibited from having “no fault” attendance policies and absence control procedures that might penalize employees for taking such leave.

This provision became effective February 19, 2023.

Sick leave

All employers in New York are to provide some form of sick leave to employees. Employees begin accruing the leave upon hire. How much and whether the leave is paid will depend upon factors such as how many employees they have.

Employee eligibility

The paid sick leave provision does not include any employee eligibility criteria. Therefore, all employees are eligible to take the leave.

Leave entitlement

Employers with four or fewer employees in any calendar year (January 1 – December 31) that have a net income of $1 million or less in the previous tax year must provide up to 40 hours of unpaid sick leave per year.

Employers with four or fewer employees that have a net income of more than $1 million in the previous tax year, and employers with 5-99 employees must provide 40 hours of paid sick leave each year.

Employers with 100 or more employees must provide 56 hours of paid sick leave each year.

Employees accrue one hour of leave for every 30 hours worked beginning upon hire or when September 30, 2020, whichever is later. Employees may take the leave during a 12-month period as determined by the employer.

Employers may choose to front-load the leave at the beginning of the year. An employee’s unused sick leave carries over to the following calendar year, but employers may limit the use of sick leave to the limit required (40 hours or 56 hours).

Employers may set a reasonable minimum increment for the use of sick leave which does not exceed four hours.

Employers need not pay out any unused sick leave upon termination, resignation, retirement, or other separation from employment.

Reasons for leave

Employees may take the sick leave for the following reasons:

For a mental or physical illness, injury, or health condition of such employee or such employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that such employee requests such leave;
For the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee’s family member; or
For an absence due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking to:
- Obtain services from a domestic violence shelter, rape crisis center, or other services program;
- Participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members;
- Meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
- File a complaint or domestic incident report with law enforcement;
- Meet with a district attorney’s office;
- Enroll children in a new school; or
- Take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.
- If an employee is under a mandatory or precautionary order of quarantine or isolation due to COVID-19 (until July 31, 2025).

Family members include children, spouses, domestic partners, parents, siblings, grandchildren or grandparents; and children or parents of an employee's spouse or domestic partner.

A parent includes a biological, foster, step- or adoptive parent, or legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child.

A child includes a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Maintenance of health benefits

The law does not specifically address the maintenance of group health care coverage.

Job restoration

Upon return to work, the employee must be restored to the position held before sick leave was taken with the same pay and other terms and conditions of employment.

Notice

Employees may request leave verbally or in writing. Upon such request, employers must, within three business days, provide a summary of the amount of sick leave accrued and used in the current calendar year and/or any previous calendar year.

Paid prenatal leave

Effective January 1, 2025, employees may take 20 hours of paid prenatal leave during any 52-week calendar period. These 20 hours are a separate leave bank in the state’s paid sick leave. Therefore, employees may take the 20 hours of leave on top of the current 40 or 56 hours of paid sick leave (depending on employer size). It is also in addition to the paid family leave.

The amendment does not restrict the number of times employees may take paid prenatal leave, other than the limit of 20 hours in a 52-week period.

Employees may take the paid prenatal personal in hourly increments. Employers must pay the benefits in hourly installments. Not clear is whether the new leave is accrued, and whether employees may take it immediately upon hire.

Reasons for leave

Employees may take the prenatal leave for health care services received by an employee during their pregnancy or related to such pregnancy, including:

• Physical examinations,

• Medical procedures,

• Monitoring and testing, and

• Discussions with a health care provider related to the pregnancy.

Employers are not required to pay employees for unused paid prenatal leave upon termination, resignation, retirement, or other separation from employment.

Paid family leave

Employees in New York are entitled to paid leave for certain qualifying reasons. The law covers all employers with at least one employee on each of 30 days in any calendar year. Leave under this law may run concurrent with leave taken under the FMLA.

Employee eligibility

Full-time employees: Employees who work a regular schedule of 20 or more hours per week are eligible after 26 consecutive weeks of employment.

Part-time employees: Employees who work a regular schedule of less than 20 hours per week are eligible after working 175 days, which do not need to be consecutive. Employees with irregular schedules should look at their average schedule to determine if they work, on average, fewer than 20 hours per week.

Amount of leave

The amount of leave to which an employee is entitled as well as the amount of pay received during the leave phased in over time. As of January 1, 2018, employees were entitled to up to 8 weeks of leave in a 52-week period at 50 percent of their pay; in 2019 employees were entitled to up to 10 weeks of leave at 55 percent of their pay; in 2020 employees were entitled to up to 10 weeks of leave at 60 percent of their pay, and in 2021 and beyond employees are entitled to up to 12 weeks of leave at 67 percent of their pay.

For part-time employees, the maximum period of PFL may be reduced by the average number of days worked per week as a percentage of the total benefit available for full-time employees. For example, if an employee works three days per week, he will receive the following:

On January 1, 2018, 60% of the 40-day (eight week) total available to a full-time employee, or up to 24 days.
On January 1, 2019, 60% of the 50-day (10 week) total available to full-time employees, or up to 30 days.
On January 1, 2020, 60% of the 50-day (10 week) total available to full-time employees, or up to 30 days.
On January 1, 2021, 67% of the 60-day (12 week) total available to full-time employees, or up to 36 days.

The pay is funded by employees through payroll deductions.

Leave may be taken on an intermittent basis in increments of one full day or one fifth of the weekly benefit. Leave may also be taken in full weeks.

Reasons for leave

Eligible employees may take paid family leave for the following reasons:

To participate in providing care, including physical or psychological care, for a family member of the employee made necessary by the family member’s serious health condition;
To bond with the employee’s child during the first 12 months after the child’s birth or the first 12 months after the placement of a child for adoption or foster care with the employee; or
Because of any qualifying exigency (defined under the federal FMLA) arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty or has been notified of an impending call or order to active duty in the Armed Forces of the United States.
Because the employee is subject to mandatory or precautionary COVID-19 quarantine or isolation.
Because the employee’s child is subject to mandatory or precautionary COVID-19 quarantine or isolation

For purposes of family leave, a “family member” is defined as a child, parent, grandparent, grandchild, spouse or domestic partner. As of January 1, 2023, “family member” includes siblings.

FMLA and PFL may run concurrently, assuming the employer is covered by both laws, employees are eligible for both, and the reason for leave qualifies for both.

Employees generally get to choose when to apply for PFL. PFL does not replace disability benefits coverage.

After giving birth, an employee may be eligible for both short-term disability benefits and PFL. While the two benefits cannot be taken at the same time, eligible employees can choose how they use both benefits.

A new parent, for example, who qualifies for short-term disability after giving birth can choose to:

Immediately take all or any portion of their available short-term disability weeks and then take PFL at any time within the first 12 months of the birth; or
Take Paid Family Leave immediately, without taking any short-term disability.

Maintenance of health benefits

Employers must maintain group health plan benefits while an employee is on paid family leave in the same manner as before leave began. Any benefits an employee had before leave began would be available to the employee after leave. Employees may choose to use accrued but unused personal time off for part or all of the family leave time, and receive full salary. Employees are not entitled to family leave benefits and full disability benefits at the same time. Employees are entitled to up to 26 weeks of combined disability and family leave benefits during a 52-week period.

Job restoration

Employees are to be reinstated to the position held when leave commenced, or to a comparable position with comparable employment benefits, pay, and other terms and conditions of employment.

Notice

If the need for family leave is foreseeable the employee must provide at least 30 days’ notice before the leave is to begin. If the need for leave is within less than 30 days, the employee must provide notice as is practicable. Employees may be required to provide a certification supporting the need for paid family leave.

Disability benefits

New York is one of a handful of states that require employers to provide disability benefits coverage to employees for an off-the-job injury or illness.

Employer coverage

Employers with one or more employees on each of at least 30 days in any calendar year.

Disability benefits insurance is required if an out-of-state business employs one or more workers whose work is localized in NY State on each of at least 30 days in a calendar year.

An employee’s service is considered localized in NY state if:

It is entirely performed within NY state; or
Employees sometimes work outside NY state, but the out-of-state work is incidental, temporary, or transitory in nature or consists of isolated transactions outside the state

An employee’s service that is not localized in any one location might still count as employment if

Their base of operations is in NY state; or
There is no base of operations in any state where some of the service is performed, but the place where the service is directed or controlled is in NY state; or
The base of operations or place from which the employee's service is directed or controlled isn't in any state where the service is performed, but the employee lives in NY state.

Employee eligibility

Employees must be under the care of a physician, chiropractor, podiatrist, psychologist, dentist, or certified nurse midwife in order to qualify for disability benefits.

Leave entitlement

Employees may receive up to 26 weeks of DI benefits in a 52-week period. There is a seven-day waiting period for which no benefits are paid.

Employees cannot collect disability benefits and Paid Family Leave (PFL) benefits at the same time. The total combined disability leave and PFL in any 52-week period may not exceed 26 weeks.

Pregnancy/delivery If an employee is pregnant, she is eligible for disability benefits for four weeks before the due date and six weeks after giving birth (eight weeks if delivered by Caesarian section).

Such employees may be entitled to further disability benefits up to the maximum 26 weeks with documentation from the employee’s medical care provider.

Intermittent leave is not specifically prohibited.

If the employer is covered by both the federal FMLA and the NY disability law, and the employee meets the eligibility criteria of both, and the reason qualifies for protection under both, they may run concurrently.

Qualifying reasons

Employees may receive the DI benefits for the following reasons:

For their owns non-occupational injury or sickness that make them unable to perform their regular job duties. It also includes a disability caused by or in connection with a pregnancy.

"Disability" during unemployment means the inability of employees, as a result of nonoccupational injury or sickness, to perform the duties of any employment for which they are reasonably qualified by training and experience.

Maintenance of health benefits

The NY disability insurance does not require employers to maintain group health care coverage.If the leave is also protected by the federal FMLA, the employee would be entitled to maintenance of health benenfits.

Reinstatement

The NY disability insurance does not provide for job protection, it provides for income replacement. If the leave is also protected by the federal FMLA, the employee would be entitled to reinstatement.

Notice

Employees apply for the benefit through the state, they are not specifically required to notify their employer.

If an employee has been disabled more than seven days, employers must give the employee a Statement of Rights under the Disability Benefits Law (Form DB-271S) within five days of learning that the employee is disabled. Therefore, employers must be made aware of the need for the benefits.

Child care leave

Unlike the federal FMLA, New York’s child-care leave covers all public- and private-sector employers.

Employee eligibility

All employees in New York are eligible for leave of absence benefits. Unlike the FMLA, an employee does not need to work a specified number of months or hours to be eligible for leave under the state's provisions.

Leave entitlement

New York does not specify the amount of leave that is permitted under state law. However, any leave that is made available to biological parents must also be made available to adoptive parents.

Reasons for leave

If an employer or governmental agency permits an employee to take a leave of absence for the birth of their child, an adoptive parent is entitled to the same leave for preschool-age children and disabled children.

Maintenance of health benefits

There is no state provision which requires an employer to maintain coverage under any group health plan while the employee is on leave. However, the FMLA requires that covered employers continue to provide group health insurance.

Job restoration

Unlike the FMLA, New York does not provide job restoration rights to employees.

Notice

Unlike the FMLA, New York does not mandate any notice requirements.

Domestic violence leave

The NY State Human Rights Law includes victims of domestic violence. The law applies to all NY employers. Employers are to provide a reasonable accommodation to employees who are known by the employer to be a victim of domestic violence, including when employees must be absent from work for a reasonable time, unless the absence would cause an undue hardship to the employer.

Employee eligibility

No real eligibility criteria, the employee or family member simply needs to be a victim. Effective February 8, 2020, this does not include anyone employed by his or her parents, spouse or child, or in domestic service.

Leave entitlement

The law does not include a set amount of leave, it just must be “reasonable,” and that term is not defined. Generally, unless a period of leave would pose a hardship, it must be provided.

Reasons for leave

To seek medical attention for injuries caused by domestic violence including for a child who is a victim of domestic violence;
To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence;
To obtain psychological counseling related to an incident or incidents of domestic violence, including for a child who is a victim of domestic violence;
To participate in safety planning and taking other actions to increase safety from future incidents of domestic violence, including temporary or permanent relocation; or
To obtain legal services, assisting in the prosecution of the offense, or appearing in court in relation to the incident or incidents of domestic violence.

Maintenance of benefits

Employees who take leave are entitled to the continuation of any health insurance coverage provided by the employer, to which the employee is otherwise entitled during any such absence.

Job restoration

Taking a negative employment action, such as not returning the employee to his or her position, could be seen as discriminating against the employee based on the protected class of being a victim of domestic violence.

Notice

Employees are to give reasonable advance notice of the absence, unless not feasible. Employees who take such leave who cannot feasibly give advance notice must, within a reasonable time after the absence, provide a certification to the you if you requested one.

A certification would be in the form of the following:

A police report indicating that the employee or his or her child was a victim of domestic violence;
A court order protecting or separating the employee or his or her child from the perpetrator of an act of domestic violence;
Other evidence from the court or prosecuting attorney that the employee appeared in court; or
Documentation from a medical professional, domestic violence advocate, health care provider, or counselor that the employee or his or her child was undergoing counseling or treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence.

Miscellaneous

You may require an employee to charge any such time off against any leave with pay ordinarily granted, where available, unless otherwise provided for in a collective bargaining agreement or existing employee handbook or policy, and any such absence that cannot be charged may be treated as leave without pay.

Blood donation leave

The state blood donation leave provisions apply to employers with 20 or more employees at one or more worksites. Employees must work an average of at least 20 hours per week to be eligible.

Under New York law, employers must allow employees time off to donate blood, but they have a choice in how to provide for this time off. They can allow employees to go off site to donate or they can use donation leave alternatives. Off-site donation is a donation that is not made in connection with a blood drive at the employee's workplace or in connection with some other convenient time and place set by the employer. Donation leave alternatives include either a blood drive at the employee’s worksite or a donation option at some other convenient time and place set by the employer.

The time to donate must include time necessary for not only the actual donation, but also time to recover, including eating/drinking afterward and returning to work.

Since the blood donation leave does not involve a serious health condition, it should not have any affect on the FMLA.

Off-site donation

Employers must grant employees up to three hours of leave from the regular work schedule in any 12-month period. The employee may be allowed to take more than three hours, but that is up to the employer.

Leave granted to employees for off-premises blood donation is not required to be paid.

Off-premises leave is not required to accrue from year to year. If an employee does not use his or her donation leave within the 12-month period, the allotment does not roll over or accrue into the next 12-month period.

Employers may require employees to show proof of their blood donation in the form of a notice or a good-faith effort from the blood bank or other sufficient proof.

Donation leave alternatives

Alternatives for blood donation leave must be provided twice per calendar year.

Leave taken under donation leave alternatives are to be paid without requiring the employee to use vacation, personal, sick, or other time off accruals.

Time spent to donate under leave alternatives must be scheduled during normal work hours. Employees cannot be required to travel an unreasonable distance to donate.

If you are going to provide a donation leave alternative, you must post a notice of the related event at least two weeks in advance.

Notice

Employers must notify employees in writing of their rights to take blood donation leave, and this can be done by such means as posting a notice, including the notice in paycheck stuffers, including notices in employee handbooks, or another comparable method.

Employers can require employees to provide advance notice of their plan to take donation leave. For off-premises leave, the employee is to provide at least three working days' notice. For alternative leave, the employee is to provide at least two days' notice.

There are situations, such as when an employee is in an position essential to the operation of the company, in which the employer can extend the notice time frame to up to 10 working days. If so, this information must be in the general written notice.

In addition, there may be emergency situations involving an employee or an employee's family member which requires an employee to donate. In this case, employers must allow for a shorter notice period.

Bone marrow donation

Employers with 20 or more employees must grant up to 24 hours of leave to employees who seek to undergo a medical procedure to donate bone marrow. The employer may require verification by a physician for the purpose and length of each leave requested by the employee.

Employees are eligible if they work for an employer for an average of 20 or more hours per week. This does not, however, include independent contractors.

Leave taken under this law does not affect an employee's rights with respect to any other employee benefit otherwise provided by law.

Military spouse leave

Employers with 20 or more employees are to provide employees up to 10 days’ unpaid time off when the employees’ spouses are on leave from the U.S. Armed Forces. The spouses are to have been deployed during a period of military conflict, to a combat theater, or combat zone of operations. This could include the regular Armed Forces as well as the National Guard or Reserves.

Employees are eligible if they worked for you for an average of 20 or more hours per week. Independent contractors are not considered “employees.”

Emergency responders

If you have employees who serve as volunteer firefighters or are enrolled members of a volunteer ambulance service, you must allow such employees leave to perform duties related to a declared emergency unless you determine that the absence would impose an undue hardship.

Before taking such leave, the employee must have provided written documentation from the head of the employee’s fire department or volunteer ambulance service notifying the employer of the employee’s status as such a volunteer.

Upon your request, an employee who has been granted such leave must provide a notarized statement from the head of the fire department or ambulance service, certifying the period of time, or times, that the employee responded to any emergency.

The period of absence must either be unpaid excused leave for employees subject to overtime provisions, or may otherwise be charged against any other leave to which the employee is entitled.

Paid parental leave for state executive branch employees

Effective February 14, 2023, NY State executive branch employers must provide paid parental leave to eligible employees.

Eligible employees

Employees must work at least 50 percent part time and be unrepresented (union), and work in one of the following bargaining units to be eligible to take this leave:

06 - Management Confidential
18 - Management Confidential State Police
46 - Military and Naval Affairs M/C
66 - Public Employment Relations Board 0801
96 - SUNY Construction Fund M/C This applies to any gestational, non-gestational, adoptive, or foster parent.

Employees are eligible on their first day of work.

Leave Entitlement

Eligible employees are entitled to up to 12 weeks of paid parental leave per qualifying event – but only once every 12-month period. Employees must complete the leave within 7 months of the qualifying event.

Paid Family Leave, Income Protection Plan, and usage of accruals cannot run concurrently with Paid Parental Leave and may be taken at the appropriate time in addition to Paid Parental Leave.

If both parents are employed by a New York State Agency, both parents may use Paid Parental Leave, even if they work for the same appointing authority.

While using paid parental leave, employees continue to be covered by their existing insurance benefits. Employees continue to have health insurance premiums, retirement contributions, and other payroll deductions withheld from their paycheck.

A qualifying event begins the 12-month period. The leave may begin on the date of birth, the day of adoption or foster care placement, or anytime thereafter within seven months.

An employee’s entitlement to use the leave ends seven months from the date of the qualifying event.

The leave may not be used intermittently and must be taken in a block of time. Employees do not have to take the full 12 weeks, but once they return from paid parental leave, they can no longer use this leave.

The paid parental leave can run concurrently with federal FMLA if employee meets the eligibility criteria, since the reasons would qualify under both.

Paid parental leave may be used in combination with all other paid and unpaid childcare leave benefits. Paid Family Leave, Income Protection Plan, and usage of accruals may not run concurrently with paid parental leave and may be taken at the appropriate time in addition to paid parental leave.

Qualifying reasons for leave

For the birth of a child or placement of a child for adoption or foster care.

Benefits continuation

While on paid parental leave, employees continue to be covered by their existing insurance benefits. Employees continue to have health insurance premiums, retirement contributions, and other payroll deductions withheld from their paycheck.

Reinstatement

Employees' right to reinstatement/job protection is not specifically indicated.

Line of duty sick leave

Officers and employees of the State, a public authority, or a municipality of less than one million people who participated in the World Trade Center rescue, recovery, or cleanup activities and subsequently developed a qualifying condition are entitled to receive unlimited paid line of duty sick leave.