New York Family and Medical Leave Law

Select New York laws concerning family and medical leave.

• Article 7, Civil Rights Law, Sec. 79-e. Breastfeeding rights.

• Article 7, Labor Law, Sec. 201-c. Discrimination in child-care leave prohibited.

• Article 7, Labor Law, Sec. 202-a. Leave of absence for bone marrow donations.

• Article 7, Labor Law, Sec. 202-b. Leave for organ or bone marrow donation granted to state employees.

• Article 7, Labor Law, Sec. 202-j. Blood donation leave.

• Article 9, Workers’ Compensation, Sec. 203 et seq.  Paid family leave.

• Article 10, Sec. 159-b. Public officers and employees; Breast cancer screening; Excused leave.

• Article 10, Sec. 159-c. Public officers and employees; Prostate cancer screening; Excused leave.

Article 7, Civil Rights Law, Sec. 79-e. Breastfeeding rights.

Notwithstanding any other provision of law, a mother may breast feed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether or not the nipple of the mother's breast is covered during or incidental to the breast feeding.

Article 7, Labor Law, Sec. 201-c. Discrimination in child-care leave prohibited.

1. Whenever an employer or governmental agency permits an employee to take a leave of absence upon the birth of such employee`s child, an adoptive parent, following the commencement of the parent-child relationship, shall be entitled to the same leave and upon the same terms; provided, however, that the adoptive parent shall not be entitled to such equal child care leave, or any portion thereof, at any time after the adoptive child reaches the minimum age set forth in subdivision one of section three thousand two hundred two of the education law for attendance in public school without the payment of tuition. With respect to the adoption of a hard-to-place or handicapped child as defined in section four hundred fifty-one of the social services law who is under the age of eighteen, an adoptive parent, following commencement of the parent-child relationship, shall be entitled to such leave of absence.

2. For purposes of this section, "commencement of the parent-child relationship" shall mean:

a. When the adoption occurs under sponsorship of an authorized agency, as defined in subdivision ten of section three hundred seventy-one of the social services law, the date the child is placed by the authorized agency in the home of the adoptive parents pursuant to section three hundred eighty-four of the social services law.

b. When the adoption occurs without the sponsorship of an authorized agency, the date a petition for the adoption of a child residing with the adoptive parents is filed in a court.

3. In addition to any other penalties or actions otherwise applicable pursuant to this chapter, whenever an employer or governmental agency has refused to extend available child-care leave to an adoptive parent in violation of this section, an aggrieved individual may commence an action for equitable relief and damages. In all actions brought pursuant to this section, reasonable attorney`s fees, as determined by the court, shall be awarded to the prevailing plaintiff.

Article 7, Labor Law, Sec. 202-a. Leave of absence for bone marrow donations.

1. For the purposes of this section, the following terms shall have the following meanings:

(a) "Employee" means a person who performs services for hire for an employer, for an average of twenty or more hours per week, and includes all individuals employed at any site owned or operated by an employer but shall not include an independent contractor.

(b) "Employer" means a person or entity that employs twenty or more employees at at least one site and includes an individual, corporation, partnership, association, nonprofit organization, group of persons, county, town, city, school district, public authority or other governmental subdivision of any kind.

2. An employer must grant leaves of absence to an employee who seeks to undergo a medical procedure to donate bone marrow. The combined length of the leaves shall be determined by the physician, but may not exceed twenty-four work hours, unless agreed to by the employer. The employer may require verification by a physician for the purpose and length of each leave requested by the employee to donate bone marrow.

3. An employer shall not retaliate against an employee for requesting or obtaining a leave of absence as provided by this section for the purpose of undergoing a medical procedure to donate bone marrow.

4. The provisions of this section shall not prevent an employer from providing leave for bone marrow donations in addition to leave allowed under any other provision of law. The provisions of this section shall not affect an employee`s rights with respect to any other employee benefit otherwise provided by law.

Article 7, Labor Law, Sec. 202-b. Leave for organ or bone marrow donation granted to state employees.

1. Any employee of the state of New York shall be allowed up to seven days paid leave to undergo a medical procedure to donate bone marrow and up to thirty days paid leave to serve as an organ donor. Such leave shall be in addition to any other sick or annual leave allowed. the employer may require verification by a physician for the purpose and length of each leave requested by the employee to donate bone marrow.

2. An employer shall not retaliate against an employee for requesting or obtaining a leave of absence as provided by this section for the purpose of undergoing a medical procedure to donate bone marrow or serve as an organ donor, provided, however, that an employee of the state of new york shall provide his or her employer with not less than fourteen days prior written notice of an intention to utilize such leave, unless there exists a medical emergency, attested to by a physician, which would require the employee to participate in the medical procedure or organ donation for which the leave is sought within the fourteen day notification period.

3. The provisions of this section shall not prevent an employer from providing leave for bone marrow or organ donations in addition to leave allowed under any other provision of law. the provisions of this section shall not affect an employee's rights with respect to any other employee benefit otherwise provided by law.

Article 7, Labor Law, Sec. 202-j. Blood donation leave.

1. For the purposes of this section, the following terms shall have the following meanings:

(A) "Employee" means a person who performs services for hire for an employer, for an average of twenty or more hours per week, and includes all individuals employed at any site owned or operated by an employer but shall not include an independent contractor.
(B) "Employer" means a person or entity that employs twenty or more employees at at least one site and includes an individual, corporation, partnership, association, nonprofit organization, group of persons, state, county, town, city, school district, public authority or other governmental subdivision of any kind.

2. An employer must either, at its option grant three hours of leave of absence in any twelve month period to an employee who seeks to donate blood; provided that the leave of absence may not exceed three hours, unless otherwise agreed to by the employer, and must comply with the requirements established by the commissioner under subdivision five of this section; or (b) allow its employees without use of accumulated leave time to donate blood during work hours at least two times per year at a convenient time and place set by the employer, including allowing an employee to participate in a blood drive at the employee's place of employment.
3. An employer shall not retaliate against an employee for requesting or obtaining a leave of absence under this section.
4. This section shall not prevent an employer from providing leave for blood donation in addition to leave allowed under any other provision of law. this section shall not affect an employee's rights with respect to any other employee benefit otherwise provided by law.
5. The commissioner is hereby authorized and directed to establish any necessary guidelines, including requirements for notice request and approval of leave, and documentation, for the timely implementation of the program.

Paid Family Leave

Article 9, Workers’ Compensation, Sec. 203. Employees eligible for benefits under section two hundred four of this article. Employees in employment of a covered employer for  four or  more  consecutive  weeks and employees in employment during the work period usual to and available during such four or more consecutive week in any trade or business in which they are  regularly  employed  and  in which  hiring  from day to day of such employees is the usual employment practice shall be  eligible  for  disability  benefits  as  provided  in section  two  hundred four of this article. Employees in employment of a covered employer for twenty-six or more consecutive weeks and  employees in  employment during the work period usual to and available during such twenty-six or more consecutive weeks in any trade or business  in  which they  are regularly employed and in which hiring from day to day of such employees is the usual employment practice shall be eligible for  family leave  benefits as provided in section two hundred four of this article.

Every such employee shall continue  to  be  eligible  for  family  leave benefits  only  during  employment  with  a covered employer. Every such employee shall continue to be eligible for  disability  benefits  during such  employment  and  for  a period of four weeks after such employment terminates regardless of whether the  employee  performs  any  work  for remuneration  or  profit  in non-covered employment. If during such four week period the employee performs any work for  remuneration  or  profit for  another  covered  employer  the  employee shall become eligible for disability benefits immediately with  respect  to  that  employment.  In addition  every  such employee who has previously completed four or more consecutive weeks in employment with the covered employer  for  purposes of  disability  benefits,  or  twenty-six  or  more consecutive weeks in employment with the covered employer for purposes of paid family  leave, and returns to work with the same employer after an agreed and specified unpaid  leave  of  absence or vacation without pay shall become eligible for benefits immediately with respect to such  employment.  An  employee who  during  a period in which he or she is eligible to receive benefits under subdivision two of section  two  hundred  seven  of  this  article returns  to  employment  with  a covered employer and an employee who is currently receiving unemployment insurance benefits  or  benefits  under section  two hundred seven of this article and who returns to employment with a covered employer shall become eligible  for  disability  benefits immediately  with  respect  to such employment. An employee regularly in the employment of a single employer on a work  schedule  less  than  the employer's  normal  work week shall become eligible for disability leave benefits on the twenty-fifth day of  such  regular  employment  and  for purposes  of  paid  family  leave  an employer shall become eligible for benefits  on  the  one  hundred  seventy-fifth  day  of   such   regular employment.  An employee who is eligible for disability and family leave benefits in the employment of a covered employer shall  not  be  deemed, for  the  purposes  of  this article, to have such employment terminated during any period he or  she  is  eligible  to  receive  benefits  under section   two  hundred  four  of  this  article  with  respect  to  such employment.

Sec. 203-a.  Retaliatory  action  prohibited  for  family  leave. 1. The provisions of section one hundred twenty of this chapter and section two hundred forty-one of this article shall be applicable to family leave.

2. Nothing in this section shall be deemed  to  diminish  the  rights, privileges,  or remedies of any employee under any collective bargaining agreement or employment contract.

Sec. 203-b.  Reinstatement following family leave. Any eligible employee of a covered employer who  takes  leave  under  this  article  shall  be entitled,  on  return from such leave, to be restored by the employer to the  position  of  employment  held  by  the  employee  when  the  leave commenced,  or  to  be restored to a comparable position with comparable employment benefits, pay and other terms and conditions  of  employment. The  taking  of  family  leave  shall  not  result  in  the  loss of any employment benefit  accrued  prior  to  the  date  on  which  the  leave commenced.  Nothing  in  this  section shall be construed to entitle any restored employee to the accrual of any seniority or employment benefits during any period of leave, or any right, benefit or position  to  which the  employee  would  have  been entitled had the employee not taken the leave.

Sec. 203-c  Health insurance during family leave. In accordance with the Family and Medical Leave Act (29 U.S.C. §§ 2601-2654), during any period of family leave the employer shall maintain any existing health benefits of the employee in force for the  duration  of  such  leave  as  if  the employee  had continued to work from the date he or she commenced family leave until the date he or she returns to employment.

Sec. 204.  Disability  and family leave during employment.

1. Disability benefits shall be payable to  an  eligible  employee  for  disabilities, beginning  with  the  eighth day of disability and thereafter during the continuance of disability, subject to the limitations as to maximum  and minimum  amounts  and  duration  and other conditions and limitations in this section and in sections two hundred five and  two  hundred  six  of this  article.  Family  leave  benefits  shall be payable to an eligible employee for the first full  day  when  family  leave  is  required  and thereafter  during the continuance of the need for family leave, subject to the limitations as to maximum and minimum amounts  and  duration  and other  conditions  and  limitations  in this section and in sections two hundred five and two hundred six of this article. Successive periods  of disability  or  family  leave  caused  by  the same or related injury or sickness shall be deemed a single period of disability or  family  leave only if separated by less than three months.

2. (a) The weekly benefit for family leave that occurs (i) on or after January first, two thousand eighteen shall not exceed eight weeks during any  fifty-two  week  calendar  period and shall be fifty percent of the employee's average weekly wage but shall not exceed fifty percent of the state average weekly wage, (ii) on or after January first, two  thousand nineteen  shall  not exceed ten weeks during any fifty-two week calendar period and shall be fifty-five percent of the employee's average  weekly wage but shall not exceed fifty-five percent of the state average weekly wage,  (iii)  on  or  after January first, two thousand twenty shall not exceed ten weeks during any fifty-two week calendar period and shall  be sixty percent of the employee's average weekly wage but shall not exceed sixty  percent  of  the  state average weekly wage, and (iv) on or after January first of each succeeding year, shall  not  exceed  twelve  weeks during  any  fifty-two  week  calendar  period  and shall be sixty-seven percent of the employee's average  weekly  wage  but  shall  not  exceed sixty-seven percent of the New York state average weekly wage in effect.

The  superintendent of financial services shall have discretion to delay the  increases  in  the  family  leave   benefit   level   provided   in subparagraphs  (ii),  (iii),  and  (iv) of this paragraph by one or more calendar years. In determining whether to  delay  the  increase  in  the family  leave  benefit  for  any  year,  the superintendent of financial services shall consider: (1) the current cost to employees of the family leave benefit and any expected change in  the  cost  after  the  benefit increase;  (2) the current number of insurers issuing insurance policies with a family leave benefit and any expected change  in  the  number  of insurers  issuing  such  policies  after  the  benefit increase; (3) the impact of the benefit increase on employers' business  and  the  overall stability  of  the  program  to  the  extent that information is readily available; (4) the impact of  the  benefit  increase  on  the  financial stability  of  the  disability  and  family  leave  insurance market and carriers; and (5) any additional  factors  that  the  superintendent  of financial  services  deems  relevant. If the superintendent of financial services delays the increase in the family leave benefit level  for  one or  more  calendar years, the family leave benefit level that shall take effect immediately following the delay shall be the same  benefit level that  would have taken effect but for the delay. The weekly benefits for family leave that  occurs  on  or  after  January  first,  two  thousand eighteen shall not be less than one hundred dollars per week except that if  the  employee's  wages at the time of family leave are less than one hundred dollars per week, the employee shall receive  his  or  her  full wages.  Benefits may be payable to employees for paid family leave taken intermittently or for less than a full work week in  increments  of  one full day or one fifth of the weekly benefit.

(b)  The  weekly  benefit  which  the disabled employee is entitled to receive for disability  commencing  on  or  after  May  first,  nineteen hundred eighty-nine shall be one-half of the employee's weekly wage but in no case shall such benefit exceed one hundred seventy dollars; except that  if the employee's average weekly wage is less than twenty dollars, the benefit shall be such average weekly wage. The weekly benefit  which the  disabled  employee is entitled to receive for disability commencing on or after July first, nineteen hundred eighty-four shall  be  one-half of  the employee's weekly wage, but in no case shall such benefit exceed one hundred forty-five dollars; except that if  the  employee's  average weekly  wage  is  less  than  twenty  dollars, the benefit shall be such average weekly wage. The weekly benefit which the disabled  employee  is entitled  to  receive  for disability commencing on or after July first, nineteen hundred eighty-three and prior to July first, nineteen  hundred eighty-four shall be one-half of the employee's average weekly wage, but in no case shall such benefit exceed one hundred thirty-five dollars nor be  less  than  twenty  dollars;  except  that if the employee's average weekly wage is less than  twenty  dollars  the  benefit  shall  be  such average weekly wage. The weekly benefit which the disabled employee is entitled to receive for disability commencing on or after July first, nineteen hundred seventy-four, and prior to July first, nineteen hundred eighty-three, shall be one-half of the employee's average weekly wage, but in no case shall such benefit exceed ninety-five dollars nor be less than twenty dollars; except that if the employee's average weekly wage is less than twenty dollars, the benefit shall be such average weekly wage. The weekly benefit which the disabled employee is entitled to receive for disability commencing on or after July first, nineteen hundred seventy and prior to July first, nineteen hundred seventy-four shall be one-half of the employee's average weekly wage, but in no case shall such benefit exceed seventy-five dollars nor be less than twenty dollars; except that if the employee's average weekly wage is less than twenty dollars the benefit shall be such average weekly wage. For any period of disability less than a full week, the benefits payable shall be calculated by dividing the weekly benefit by the number of the employee's normal work days per week and multiplying the quotient by the number of normal work days in such period of disability. The weekly benefit for a disabled employee who is concurrently eligible for benefits in the employment of more than one covered employer shall, within the maximum and minimum herein provided, be one-half of the total of the employee's average weekly wages received from all such covered employers, and shall be allocated in the proportion of their respective average weekly wage payments.

Sec. 205. Disabilities, family leave and periods for which benefits are not payable.
1. No employee shall be entitled to disability benefits under this article:
(a) For more than twenty-six weeks minus any days taken for family leave during any fifty-two consecutive calendar weeks during a period of fifty-two consecutive calendar weeks or during any one period of disability, or for more than twenty-six weeks;
(b) for any period of disability during which an employee is not under the care of a duly licensed physician or with respect to disability resulting from a condition of the foot which may lawfully be treated by a duly registered and licensed podiatrist of the state of New York or with respect to a disability resulting from a condition which may lawfully be treated by a duly registered and licensed chiropractor of the state of New York or with respect to a disability resulting from a condition which may lawfully be treated by a duly licensed dentist of the state of New York or with respect to a disability resulting from a condition which may lawfully be treated by a duly registered and licensed psychologist of the state of New York or with respect to a disability resulting from a condition which may lawfully be treated by a duly certified nurse midwife, for any period of such disability during which an employee is neither under the care of a physician nor a podiatrist, nor a chiropractor, nor a dentist, nor a psychologist, nor a certified nurse midwife; and for any period of disability during which an employee who adheres to the faith or teachings of any church or denomination and who in accordance with its creed, tenets or principles depends for healing upon prayer through spiritual means alone in the practice of religion, is not under the care of a practitioner duly accredited by the church or denomination, and provided such employee shall submit to all physical examinations as required by this chapter.

2. No employee shall be entitled to family leave benefits under this article:
(a) For more than twelve weeks, or the maximum duration permitted as set forth in paragraph (a) of subdivision two of section two hundred four of this article, during a period of fifty-two consecutive calendar weeks, or for any period in which the family leave combined with the disability benefits previously paid exceeds twenty-six weeks during the same fifty-two consecutive calendar weeks;
(b) For any period of family leave wherein the notice and medical certification as prescribed by the chair has not been filed. At the discretion of the chair or chair's designee pursuant to section two hundred twenty-one of this article, the family member who is the recipient of care may be required to submit to a physical examination by a qualified health care provider. Such examination shall be paid for by the carrier; and
(c) As a condition of an employee's initial receipt of family leave benefits during any fifty-two consecutive calendar weeks in which an employee is eligible for these benefits, an employer may offer an employee who has accrued but unused vacation time or personal leave available at the time of use of available family leave to choose whether to charge all or part of the family leave time to accrued but unused vacation or personal leave, and receive full salary, or to not charge time to accrued but unused vacation or personal leave, and receive the benefit as set forth in section two hundred four of this article. An employer that pays full salary during a period of family leave may request reimbursement in accordance with section two hundred thirty-seven of this article. With the election of either option, the employee shall receive the full protection of the reinstatement provision set forth in section two hundred three-b of this article, and shall concurrently use available family medical leave act and paid family leave credits. In no event can an employee utilize family leave beyond twelve weeks, or the maximum duration permitted as set forth in paragraph (a) of subdivision two of section two hundred four of this article, per any fifty-two week period set forth in this article. This paragraph may not be construed in a manner that relieves an employer of any duty of collective bargaining the employer may have with respect to the subject matter of this paragraph.

3. No employee shall be entitled to disability or family leave benefits under this article:
(a) for any disability occasioned by the wilful intention of the employee to bring about injury to or the sickness of himself or another, or resulting from any injury or sickness sustained in the perpetration by the employee of an illegal act;
(b) for any day of disability or family leave during which the employee performed work for remuneration or profit;
(c) for any day of disability or family leave for which the employee is entitled to receive from his or her employer, or from a fund to which the employer has contributed, remuneration or maintenance in an amount equal to or greater than that to which he or she would be entitled under this article; but any voluntary contribution or aid which an employer may make to an employee or any supplementary benefit paid to an employee
pursuant to the provisions of a collective bargaining agreement or from a trust fund to which contributions are made pursuant to the provisions of a collective bargaining agreement shall not be considered as continued remuneration or maintenance for this purpose;
(d) for any period in respect to which such employee is subject to suspension or disqualification of the accumulation of unemployment insurance benefit rights, or would be subject if he or she were eligible for such benefit rights, except for ineligibility resulting from the employee's disability;
(e) for any disability due to any act of war, declared or undeclared;
(f) for any disability or family leave commencing before the employee becomes eligible to benefits under this section.

4. An employee may not collect benefits concurrently under both subdivisions one and two of this section.

5. In any case in which the necessity for family leave is foreseeable based on an expected birth or placement, the employee shall provide the employer with not less than thirty days notice before the date the leave is to begin, of the employee's intention to take family leave under this article, except that if the date of the birth or placement requires
leave to begin in less than thirty days, the employee shall provide such notice as is practicable. In any case in which the necessity for family leave is foreseeable based on planned medical treatment, the employee shall provide the employer with not less than thirty days notice, before the date the leave is to begin, of the employees intention to take family leave under this article, except that if the date of the treatment requires leave to begin in less than thirty days, the employee shall provide such notice as is practicable.

Article 10, Sec. 159-b. Public officers and employees; Breast cancer screening; Excused leave.

1. Every public officer, employee of this state, or employes of any county, employee of any municipality, or the employee of any school district shall be entitled to absent himself or herself and shall be deemed to have a leave of absence from his or her duties or service as such public officer or employee of this state, employee of any county, employee of any municipality, or employee of any school district, for a sufficient period of time, not to exceed four hours on an annual basis, to undertake a screening for breast cancer.
2. The entire period of the leave of absence granted pursuant to this section shall be excused leave and shall not be charged against any other leave such public officer, employee of this state, employee of any county, employee of any municipality, or employee of any school district is otherwise entitled to.
3. The provisions of this section shall not apply to any employee of a city having a population of one million or more.

Article 10, Sec. 159-c. Public officers and employees; Prostate cancer screening; Excused leave.

1. Every public officer, employee of this state, employee of any county, employee of any municipality, or employee of any school district shall be entitled to absent himself and shall be deemed to have a leave of absence from his duties or service as such public officer, employee of this state, employee of any county, employee of any municipality, or employee of any school district, for a sufficient period of time, not to exceed four hours on an annual basis, to undertake a screening for prostate cancer.
2. The entire period of the leave of absence granted pursuant to this section shall be excused leave and shall not be charged against any other leave such public officer, employee of this state, employee of any county, employee of any municipality, or employee of any school district is otherwise entitled to.
3. The provisions of this section shall not apply to any employee of a city having a population of one million or more