NY Paid Family Leave Voluntary Coverage for Exempt Employers and Excluded Employees

Excluded employees of Covered Employers who are required to have a DBL policy in place, but may have certain employees who are excluded from coverage.

Even though the Covered Employer must have DBL/PFL coverage in place, certain classes aren’t automatically included under the DBL/PFL policy because they are excluded under the law.

Excluded classes of employees:

• Daytime students in an elementary or secondary school who work part-time
  • High School Students: employees in regular attendance during the day as a student in an elementary or secondary school who work part-time during all or any part of the school year or regular vacation periods.
• Minor children of the Covered Employer
• "Extra Employees" (so identified because they are normally not in the labor market but are hired to do work for a limited, special period of time; after 45 days, however, they become eligible for DBL)
• "Casual Employees" (so called because they normally work in a different occupation and are hired for a day or less)
• Railroad and maritime workers
• Golf Caddies
• Black car operators covered by the Black Car Operator’s Fund
• Livery drivers covered by the Independent Livery Disability Benefits Fund
• Jockeys (including apprentice jockeys, exercise persons, or other employees of a licensed horse trainer/owner) who are covered by the NY Jockey Injury Fund
• Certain classes of employees at incorporated non-profit 501(c)3 religious, charitable or educational institutions, such as daycare centers, church preschools, charities, etc.:
  • Executive officers
  • Employees in a Teaching Capacity
    Teaching Capacity means: creating lesson plans, classroom instruction
    Ex: Teacher Aids are not usually classified as working in a teaching capacity, so they’d be covered, but a head teacher in a daycare setting at a non-profit would be excluded because they likely are providing classroom instruction, and drafting lesson plans
  • Clergy (ministers, priests, rabbis, imams, sextons, Christian Science readers, or members of a religious order)
  • Persons participating in and receiving rehabilitative services in a sheltered workshop run by one of these specific non-profit institutions
  • Uncompensated Volunteers
    Employees engaged in a professional capacity
    • Professional capacity is usually limited to “research scientists”
  • Owners/shareholders of Partnerships, LLCs, LLPs, Sole Proprietorships (“business owners”) WITH employees
• True independent contractors and subcontractors are not considered employees for DBL/PFL (see expert tip below for details)
  • Trucking industry:
    
    • Drivers are considered Independent Contractors if they meet the “true” independent contractor criteria and transport goods under their own bill of lading and DOT Number.
  • Real Estate:
    Licensed Insurance Agents/Brokers and Licensed Real Estate Brokers/Sales Associates are Independent Contractors if they:
    • have income based on sales and not on the number of hours worked;
    • receive a training allowance subsidy;
    • have a written contract outlining the services that they are to perform;
    • can choose the hours they work;
    • incur their own expenses for travel and entertainment (facilities and supplies may be provided by the agency/firm); and
    • are not treated as an employee for State and Federal tax purposes (other than FICA which is required for full-time life insurance agents)