New York Temporary Disability Insurance and the Family Medical Leave Act

By July 18, 2017New York

New  York’s Short Term Disability Benefits

The State of New York passed their Temporary Disability Benefits Program in 1949, making it one of the first state run disability programs. To date, only a handful of states offer temporary insurance including Hawaii, New  York, California and New Jersey.

New York’s Temporary Disability Insurance  provides paid benefits when an employee is disabled due to off the job injuries or illnesses. Although employees are paid for disability leave, it is important to note that disability leave is not a protected leave under New York Law.

Employees are only able to take protected leave if they qualify under the Family Medical Leave Act. Additionally, starting in 2018, parents will be able to take a paid and protected Family or Parental leave.

Under New York law, all employers with at least one employee for 30 days or more in a calendar year is required to provide temporary disability insurance (TDI). Correspondingly, any employee who has been working for a covered employer at least 4 weeks is eligible for benefits under the Disability Benefits Law. Employees who switch from one covered employer to another covered employer continue to be covered for temporary disability. Domestic workers who work 40 hours or more for one employer are also covered. These workers would include a nanny or personal assistant. Additionally, individuals not covered by a covered employer can elect for voluntary coverage.

Temporary disability insurance is funded by employee payroll contributions of ½ of 1% of the employee’s wages. Employees who are disabled can receive benefits of up to 50% of their wages. However, benefits max out at $170 per week. Employees who are disabled due to pregnancy related reasons are covered under TDI. Employees can receive up to 26 weeks of benefits in a 52 week period.

Employees who take TDI may assume that their disability leave is protected under New York law, but in fact, disability leave is not covered. This means that unless the employee is covered under a different leave law, the employee is not guaranteed job protection when they return to work.

Protected Leave for Temporary Disability

Employees who are temporarily disabled may qualify for protected leave under a different law. Employees in New York City can access paid sick leave. Sick leave provides up to 5 days of paid time off for sickness, injuries, or preventative care. As TDI does not start coverage until after 7 days of disability, the New York City sick leave can fill that pay gap. However, 5 days is not enough to provide a protected leave over a lengthened period of time.

Eligible Employees in New York may be able to receive TDI and simultaneously take leave through the U.S. Family and Medical Leave Act (FMLA).

Family and Medical Leave Act

FMLA requires employers with at least 50 employees within a 75 mile area to provide leave to eligible employees. Employees are eligible for protected leave after they have worked for the employer for at least a year and have worked at least 1,250 hours in the previous year.

Further, FMLA leave provides bonding leave for parents, medical leave for employee’s’ serious health condition, family leave to care for a family member’s serious health condition, and leave to care for practical matters arising out of a family member’s military deployment.

Under New York’s Disability Benefits Law, employees who take leave may be able to take FMLA leave to care for their own serious health condition. Employees who take FMLA leave for any of the other reasons would not qualify for TDI. Additionally, not all employees who take TDI will qualify for protected leave under FMLA.

Qualifying for Serious Health Condition under FMLA

As defined by the Department of Labor, a serious health condition is any injury or health condition that requires in patient care or continuing treatment by a health care provider. Anytime that the employee has an overnight stay in a hospital, hospice, or residential health care facility. Admission to one of the facilities is an automatic trigger for a serious health care condition under FMLA.

In addition, conditions that require continuing treatments are also considered serious health conditions. The employee must be incapacitated for at least 3 days due to the injury or illness and must have at least 2 in person visits to the health care provider. Some examples of this type of serious health condition include broken bones, surgeries, and pneumonia.

Chronic conditions that do not require continued periods of incapacity of 3 days or more, but that require periodic visits to a health care provider and continue for an extended period of time. These conditions may cause intermittent periods of incapacity. For these types of serious health conditions, employees would be able to use FMLA, but would not qualify for temporary disability insurance under New  York law because benefits are not paid until after the first 7 days of disability.

FMLA also provides leave for all prenatal care and incapacity regardless of the period of incapacity. THis means that pregnant employees missing work due to morning sickness are eligible to take FMLA. Therefore anytime a pregnant employee received temporary disability insurance due to pregnancy induced disability, that employee would also be eligible to receive FMLA and would have protected leave.

Health conditions that require multiple treatments and recovery from treatments such as cancer, severe arthritis, and kidney disease also qualify as a serious health condition.

Lastly treatment for substance abuse by a health care provider or a provider of health care services also qualify.

Although not considered a serious health condition, it is important to note that under FMLA law, employees can take protected leave to bond with a new child after birth. New York’s Temporary Disability Insurance provides paid disability benefits for women for the first 6 weeks after giving birth. Although New York qualifies that time as disability leave, the employee would still be protected under the bonding leave provided by FMLA.

Let SwipeClock Help

Businesses In New York not only have to be aware of and comply with state and local leave and disability laws, but also have numerous other employment laws and requirements to follow.

Some of those laws include Federal Overtime Laws, the Family Medical Leave Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.

Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.

About SwipeClock

SwipeClock is a leading provider of cloud-based integrated workforce management solutions that include automated time and attendance, advanced scheduling, and leave management capabilities.

The company’s products, including TimeWorksPlus, TimeSimplicity and Workforce Management Clock enable employers to manage their most important and expensive asset-employees-by transforming labor from a cost of doing business to a competitive advantage.

SwipeClock’s workforce management solutions are sold through over 850 partners that empower more than 26,000 businesses to lower labor costs, comply with regulatory mandates, and maximize their profits. For more information, please visit www.swipeclock.com.

Resources

New York Disability Benefits Law

https://www.dol.gov/whd/regs/compliance/1421.htm

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