Hamberger & Weiss LLP


Paid Family Leave and Your Workers' Compensation Defense Counsel

The New York Paid Family Leave program is now up and running, with the first covered leaves effective 1/1/18. The Workers’ Compensation Board introduced a robust Paid Family Leave webpage, and has addressed the topic “road show” style at various venues throughout the state. We offered our webinar on the Act in May 2017. As workers’ compensation defense counsel, we regularly receive inquiries about the overlap between Paid Family Leave and workers’ compensation. 

The statutes and regulations pertaining to Paid Family Leave are part of the NYS Workers’ Compensation Law. They are codified in Section 200 of the WCL, entitled, Disability Benefits Law and the Paid Family Leave Benefits Law. Historically, as workers’ compensation defense counsel, we have represented our clients in disability benefits matters before the Workers’ Compensation Board. Unlike disability benefits, Paid Family Leave does not have a hearing process. Rather, Paid Family Leave is handled in writing between the applicant and the carrier, administrator or self-insured employer. 

There are parallels between the Paid Family Leave process and the workers’ compensation claim process. The carrier, administrator or self-insured employer has only 18 days to pay or deny a claim for Paid Family Leave. The NY Code of Rules and Regulations contains the various legitimate reasons for denying a Paid Family Leave application, including eligibility of the employee or family member, timeliness and coverage, to name a few. Given the numerous reasons available, the procedural and factual aspects of each application must be reviewed and weighed carefully. Denials can be full, partial, or without prejudice and must be in writing. The written product must include the reasons for the denial and cite any relevant information considered when making the decision to deny. Furthermore, if a claim is denied on the basis of an incomplete claim package, the carrier, administrator or self-insured employer must instruct the applicant on how to correct the defect. Working in conjunction with claims handlers and employers’ human resources professionals, workers’ compensation defense counsel can assist in the efficient and effective handling of Paid Family Leave claims. 

If the informal resolution process described above is unsuccessful, either party can request arbitration of a Paid Family Leave claim. Arbitration involves filing fees and hourly fees paid to the arbitrators. Arbitrators are appointed by the Workers’ Compensation Board Chair. Arbitration proceedings are not handled at the Workers’ Compensation Board, but by a dispute resolution forum. For each case, an arbitrator is chosen from a panel. Parties may object to the choice of a particular arbitrator, a decision which should be made with care. Once request for arbitration is acknowledged by the dispute resolution forum, the responding party has 14 days to respond. Arbitrations are decided by desk review of written evidence, unless the arbitrator finds further development of the record necessary. Further development of the record could involve submission of additional documentary evidence, sworn affidavits, medical record review, or an oral hearing at the discretion of the arbitrator. Once the arbitrator makes a decision, it is binding unless vacated or modified under the NY Civil Practice Law and Rules. In the event that arbitration of a Paid Family Leave claim becomes necessary, involving counsel will put the carrier, administrator or self-insured employer in the best position for successful arbitration with timely, carefully drafted application, answer, or response to requests for further development of the record. 

Finally, one of the guarantees in the NY Paid Family Leave Law is that the employer will return the employee to his or her former or comparable job at the insured after a period of leave. Failure to reinstate an employee can result in a WCL Section 120 discrimination claim, which will be adjudicated at the NYS Workers’ Compensation Board. Hamberger & Weiss has successfully handled discrimination claims for its clients for many years, so we are well suited to do so in conjunction with a Paid Family Leave claim should the need arise.

Inquiries regarding Paid Family Leave may be directed to Nicole Graci at ngraci@hwcomp.com or 716-852-5200.

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