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Federal vs. New York family and medical leave laws – Part 4



The federal Family and Medical Leave Act provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons.



In addition to the federal FMLA, New York has laws regarding pregnancy leave, adoptive parents leave, blood donation leave, bone marrow donation leave, military spouse leave and paid family leave (effective Jan. 1, 2018).



The comparison chart below concludes our review of federal vs. New York family and medical leave laws. This chart reviews leave requests, certification requirements, as well as other laws.




































Family and Medical Leave in New York





FEDERAL ELEMENTS


STATE ELEMENTS


Leave Requests


To be
made by the employee at least 30 days prior to date leave is to begin where
need is known in advance or, where not foreseeable, as soon as practicable.


If due to
a planned medical treatment or for intermittent leave, the employee, subject
to healthcare provider's approval, shall make a reasonable effort to schedule
it in a way that does not unduly disrupt the employer's operations.


If due to foreseeable active duty
of family member, notice must be made as soon as practicable.


Pregnancy leave: Employers cannot discriminate on the
basis of sex and must treat disability arising from pregnancy in the same
manner as other disabilities.


Adoptive parents leave: Employers that permit employees to
take leaves of absence upon the birth of a child must permit an adoptive
parent, following commencement of parent-child relationship, the same leave
upon the same terms (unless the child has reached school age or, in the case
of a hard-to-place or handicapped child, has reached age 18).


Blood donation leave: No provision; however, the New York Department of
Labor has issued guidelines
allowing employers to require at least:


·        
three
working days’ advance notice of the employee’s intent to take leave for
off-premises blood donation; or


·        
two days’
advance notice of the employee’s intent to take leave for any other blood donation.


The
employer may require up to 10 working days’ advance notice as necessary to
fill the position if both:


·        
the
employee taking leave is in a job that is essential to the employer’s
operations or necessary to comply with legal requirements; and


·        
three
days’ notice is insufficient for the employer to fill the position for the
leave period.


If leave
is for blood donation in an emergency, employers must reasonably accommodate
a shorter notice period.


Bone marrow donation leave: No provision, however, the New
York Department of Labor has advised
that employers may require notice:


·        
at least
24 hours in advance of a scheduled bone marrow donation; or


·        
as soon
as possible after receipt of a request for an unscheduled bone marrow
donation.


Military spouse leave: No provision


Paid family leave (effective Jan. 1, 2018): When the
need for family leave is foreseeable (for example, for the birth or placement
of a child or for planned medical treatment), an employee may be required to
provide his or her employer with 30 days’ advance notice of the intention to
take family leave. If the need for leave is not foreseeable, the employee
must provide notice as soon as practicable.










Certification Requirement


Employer
may require certification for the following:


Request
for leave because of serious health condition
or to care
for covered service member with a serious illness or injury.


Request for qualifying exigency
leave because of family member’s
active duty or call to active
duty in the Armed Forces.


To demonstrate
employee's fitness to return to work from medical leave where employer has a
uniformly applied practice or policy requiring such certification.


Pregnancy leave: Employers cannot discriminate on the
basis of sex and must treat disability arising from pregnancy in the same
manner as other disabilities.


An
employee must cooperate in providing medical or other information that is
necessary to verify the existence of the disability or pregnancy-related
condition, or that is necessary for consideration of the accommodation. The
employee has a right to have such medical information kept confidential.


Adoptive parents leave: Employers that permit employees to
take leaves of absence upon the birth of a child must permit an adoptive
parent, following commencement of parent-child relationship, the same leave
upon the same terms (unless the child has reached school age or, in the case
of a hard-to-place or handicapped child, has reached age 18).


Blood donation leave: No provision, however, the New York Department of
Labor has issued guidelines
allowing employers to require proof of off-premises blood donation.


Bone marrow donation leave: Employer may require physician
verification for the purpose and length of each leave requested by an
employee.


Military spouse leave: No provision


Paid family leave (effective Jan. 1, 2018): An employee
may be required to provide a medical certification completed by a healthcare
provider to support the need for family leave.





Other





Registered
domestic partners must be treated the same as spouses for most purposes under
New York law, including for employee leave purposes.







Please note that the information in the above chart focuses on statewide laws. Employers must be aware that numerous cities across the country (including New York City) have enacted local ordinances that mandate employers provide paid sick leave to employees. An employer located in a city with a paid sick leave law must comply with the local ordinance and statewide law, if applicable.



Read about other federal and state areas of comparison in federal vs. New York family and medical leave laws – Part 1, Part 2 and Part 3. These comparison charts are provided for general informational purposes only. They are not intended to be exhaustive, nor should any discussion or opinions be construed as legal advice. If you have any questions or would like to begin talking to an employee benefits consultant, please get in touch by email or by calling (800) 388-1963.

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