NY Paid Family Leave Voluntary Coverage for Exempt Employers and Excluded Employees - Two employees working in an office with masks

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

Voluntary Coverage for NY Paid Family Leave

Voluntary coverage for Paid Family Leave (PFL) follows suit with DBL (statutory short-term disability). As such, it applies to any entity currently considered a “Covered Employer” under DBL (mostly private sector organizations with at least 1 employee who works in NY for at least 30 days in a year):

  • DBL-exempt employers are exempt from PFL as well. This means they are exempt altogether from providing coverage to their employees – but they can choose to provide voluntary coverage.
  • Employee classes excluded from DBL are excluded from PFL as well. Some Covered Employers may have workers who are excluded classes/occupations. In such cases, all other eligible employees must still be covered under DBL/PFL while the employer can choose to cover specific classes of excluded employees by applying for voluntary coverage.
  • In either situation, voluntary coverage is not on the individual level but must be extended to at least an entire class.?

 

Not sure what employers are exempt and what type of employees are excluded? Let’s break down where voluntary coverage applies. There are 2 situations where voluntary coverage comes into play:

Situation #1: NY PFL Excluded Classes of 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)

 

 

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Situation #2: NY PFL Excluded Employers

Employers who do NOT meet the definition of “Covered Employers” and thus are not required to have a DBL/PFL policy in place.


This type of employer is not considered a Covered Employer and coverage is not required for any employees, but the employer may choose to obtain coverage for a specific class or classes of employees.

 

Excluded employers are:

  • Public Employers: New York State, any political subdivision of NY State, a public authority or any other governmental agency or instrumentality thereof. This is the ONLY type of employer that can opt to provide DBL only, PFL only, or a combined DBL/PFL policy.
    Examples of public employers:
    • State of New York
    • City of XYZ
    • Village of XYZ
    • Town of XYZ
    • Public Libraries without a federal 501(c)3 status*
    • Public Authority
    • Municipality
    • Fire District
    • Water District
    • School District
  • Owners/shareholders of Partnerships, LLCs, LLPs, Sole Proprietorships (“business owners”) without employees
    • They can apply to become a Covered Employer and be endorsed onto the DBL/PFL policy through voluntary coverage.
    • If an employee is hired, the employer becomes a "Covered Employer” 4 weeks after the 30th day of such employment, and a policy must be in place by this deadline to ensure compliance.
  • Owners/shareholders of a Corporation with 1 or 2 officers who own all the stock of the corporation and have no employees
  • Domestic Employer whose only employees are domestic workers that work less than 40 hours per week for the household and do not live on premise
    • A domestic employee/worker is a chauffeur, nanny, home health aide, nurse, babysitter, maid, cook, housekeeper, laundry worker, butler, companion, and/or gardener that works in a private household
  • Native American Enterprises
    • Disability benefits insurance coverage is not required for Native American enterprises owned by the Native American tribe itself (i.e. Casinos) -- (the Native Americans and non-Native Americans working at the enterprise may be covered voluntarily). If, however, the enterprise is not owned by the tribe, but instead is owned by an individual, partnership, corporation etc., then the enterprise must abide by the regular New York State coverage requirements for disability benefits insurance.

Sole Proprietors and members of an LLC/LLP (or any other self-employed people) can obtain voluntary DBL/PFL coverage for themselves effective January 1, 2018, or within 26 weeks of forming the above type of business or becoming a member of an LLC/LLP.

  • If they miss those dates, they can still obtain voluntary coverage for themselves and be endorsed onto the policy. They are, however, subject to a 2-year waiting period for PFL benefits, during which the regular community rate for PFL must be paid.
  • If their business is considered a Covered Employer, owners must still must provide coverage for their employees – even if they don’t want coverage for themselves.
  • Any employees of a Sole Proprietor or LLC/LLP would not be subject to the 2-year waiting period if the owners are late PFL entrants.
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NY Paid Family Leave Voluntary Coverage: What to consider

If you provide voluntary coverage you must maintain it for at least one year. If you want to discontinue it, you must provide a written notice to the Chair of the Worker’s Comp Board and to the affected employees within 90 days before coverage will end. You must include provisions made for the payment of obligations incurred on and prior to the effective termination date.

Here are some examples where voluntary coverage might come into play:

Type of Business Required to have DBL? Who is covered automatically Who can be covered with Voluntary Coverage
Public Employer (Town, Village, City, State, Fire District, Water District, Public Library*, Municipality, Public Authority) No No one. All employees are exempt. Any class of employee.
Sole Proprietor without employees
No No one. There are no employees and the sole proprietor is excluded. Sole proprietor can apply to become a covered employer for the purposes of DBL/PFL.
Partnership without employees
No No one. There are no employees and the partners are excluded. Partners can apply to become a covered employer for the purposes of DBL/PFL.
Church, Synagogue
Yes Secretary, janitor/custodial staff, administrative staff, clerical staff, bookkeeper, cooks
Teachers, religious leaders.
Farm Yes Manager, administrative staff, secretary, bookkeeper, custodial staff, cashiers, mechanic, truck drivers
High school students
Non-Profit Religious, Charitable, or Educational Institution (e.g., DAYCARE, CHURCH PRESCHOOL)
Yes Management, administrative/clerical staff, therapists, social workers, nursing staff, teachers aids or room helpers
Teachers, executive officers
Fast food restaurant
Yes Management, cooks, cashiers, custodial/janitorial staff, bookkeeper
Part time high school students
Sole Proprietor with Employees
Yes Employees Sole Proprietor
Partnership with Employees
Yes Employees Partners
LLC with employees
Yes Employees Members of the LLC

 

*Public libraries organized as an Association Library with a federal 501(c)3 status are required to have a DBL/PFL policy in place for their employees. Municipal, School District, and Special District Public Libraries are not required to have a DBL/PFL policy in place for their employees.

 

The ABCs of PFL

Our in-depth guide provides everything you need to know about Paid Family Leave in New York. Here’s what you’ll find inside this 33-page guide:

  • PFL basics
  • Eligibility
  • Benefit eligibility and qualification period details
  • Benefits - updated for 2021
  • Claims
  • Premium - updated for 2021
  • Example withholdings - updated for 2021
  • Employer responsibilities
  • How PFL compares to DBL & FMLA
  • Tips from your PFL Experts
  • …And much more!

 

Download your copy now

 

 

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Underwritten by:
ShelterPoint Life Insurance Company (principal office in Garden City, NY) in: NY
ShelterPoint only offers Paid Family Leave in form of a rider to DBL.
Policy Form# SPL DB0919 F

This page is for informational purposes only and is not intended to provide legal counsel. Please consult with an appropriate professional for legal and compliance advice. Any Paid Family Leave information is based on the applicable statutes and may change if guidance is issued by the State of New York.

 

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