Can Employees "Opt-Out" of PFL?
December 12, 2017
As we get closer and closer to January, 1 2018, we have gotten more questions from employers wondering if they, or their employees, can opt-out of Paid Family Leave coverage. If you’re a “Covered Employer” the short answer is – no. DBL and PFL are mandatory insurance coverages that you must provide for all your eligible employees. If you fail to put a policy in place, you may be subject to fines and other penalties.
However, as the owner, you may file a request with the Worker’s Compensation Board (WCB) to exclude yourself under the following circumstances:
- If your business is a corporation with no more than 2 corporate officers (each owning at least 1 share of stock) and you have at least 1 employee, you may elect to exclude yourself from DBL/PFL coverage.
- As a sole proprietor or co-owner of a partnership, you may elect to exclude your spouse by filing a spousal exclusion.
But, the question remains: can my employees opt out of PFL?
Paid Family Leave is a mandatory benefit for employees who do not fall into an excluded class and work at a Covered Employer, just like DBL. You can read more about those excluded classes here.
There are a few limited scenarios under which certain employees may “opt out” by filling out the PFL-Waiver form. An employee may file a waiver for paid leave benefits if they:
- work 20+ hours per week but not 26 consecutive weeks
- work less than 20 hours per week and less than 175 days in a consecutive 52-week period
If an employee’s work schedule ceases to fall below this threshold, their PFL waiver is automatically invalid within 8 weeks of the change in their work schedule. At that time you must start counting this employee for premium purposes – and if you are collecting employee contributions for PFL, any employee coming off a waiver will need to start contributing, including any retroactive amounts back to the date of hire or inception of PFL.
You will need to keep the waiver on file for as long as they are working for you – whether the waiver is still in force or not.
One other scenario where an employee may “opt-out” or exempt themselves is if they are receiving, or are eligible to receive Old Age Social Security benefits. However, in this case the employee would need to opt-out of both DBL and PFL by sending written notice to the Chair of the Worker’s Compensation Board.
PFL Expert Tip:
It’s best practice to educate employees who would qualify for the waiver about their options, especially if you withhold PFL premium from employees, and have them confirm in writing even if they don’t want to waive.
In summary, unless your employees meet the very specific criteria above and you are a “Covered Employer,” then they all must participate in Paid Family Leave – even if they’ve already had children, or have no living family.
ShelterPoint’s PFL Experts are here to answer any questions you may have. Contact us at firstname.lastname@example.org for more information.
This blog post 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 PFL information is as of the blog post’s date stamp; it is based on the applicable statutes and regulation, and may change as regulations evolve or NY State issues guidance regarding Paid Family Leave regulations. Have more questions? Email us at email@example.com