PFL Hot Topic: Exempt Employers, Excluded Employees, and Voluntary Coverage

July 17, 2017

***July 2019 Update!  Farm laborers are no longer an excluded class and may be eligible to receive PFL benefit coverage.  For more information read this blog post for details.***

*** This information has been edited based on information from WCB on 07/27/17  ****

Since Paid Family Leave (PFL) is added to the DBL policy (statutory short-term disability) as a rider, it applies to any entity currently considered a “Covered Employer ” under DBL (typically private sector organizations with at least 1 employee who works in NY for at least 30 days in a year). On the flipside, the same exemptions and exclusions apply as for DBL:

• 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.Confused? Not sure what employers are exempt and what type of employees are excluded? No worries, today we’re breaking down those scenarios where voluntary coverage applies. There are 2 situations where voluntary coverage comes into play:

Let’s first look at 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.
     

PFL Expert Tip: if the high school student is a full time employee, they are automatically covered under the Covered Employer’s policy

• 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
• Farm Laborers: employees that perform farm-specific duties such as planting, sowing
• 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

PFL Expert Tip: In a for-profit business, teachers are covered!

• 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)

Scenario 2 applies to 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 aid, 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.

What to consider when providing voluntary coverage:
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.
 

PFL Expert Tip: PFL Voluntary Coverage Cheat Sheet

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

*Public libraries orginized 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.

Still have questions about voluntary coverage?  Find more details on coverage and eligibility, or send us questions anytime at pflquestions@shelterpoint.com.

This material 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 as of July 19, 2017, is based on the applicable statutes.