If you or a family member are injured and unable to work, you may wonder what types of leave may be available.
After you or a family member suffer an injury or other serious health condition and are unable to work, you may wonder what types of family leave may be available if it becomes necessary to take time off from your employer. Learn more about how to protect your job after a personal injury with Family and Medical Leave Act (FMLA) or New York Paid Family Leave.
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Family Medical Leave Act
Under the federal Family and Medical Leave Act (FMLA), eligible employees may take up to 12 weeks of unpaid leave a year. This unpaid leave may be used by an employee to:
- Recover from a serious injury or handle a long-term health condition
- Take time off to bond with a new child
- Care for a close relative with a serious injury or long-term health condition
- Take time off to take care of urgent issues caused by a close family member being on active military duty
New York Paid Family Leave
Since it was passed in 2016, New York State Paid Family Leave provides eligible employees job protected, paid time off to care for family members or for maternity leave. For eligible working New Yorkers, this means you may be able to take paid leave to care for a family member after their personal injury while keeping your job protected and preventing dismissal as a result.
Under FMLA and New York’s Paid Family Leave programs, you are allowed to take time off of work to care for a close family member’s injury or medical emergency. Even if your employer doesn’t offer paid family leave as a part of their health insurance or benefits package, you may be covered by FMLA or Paid Family Leave.
Under both programs, eligible employees have the right to take leave from work to care for a family member with a serious condition following an accident or medical procedure. In addition, employees may take parental leave to welcome a new child, or an adopted or foster child.
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Why Do We Need Paid Family Leave?
When an emergency arises, it’s often difficult for employees and their families to both care for their loved ones, and maintain a job. Without any kind of paid family leave law, employees may face the stress of losing weeks of wages, or at even worse, their jobs.
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Who Does the New York State Paid Family Leave Law Cover?
In New York State, the paid family leave law covers family members who may need to care for another member of their family. In many cases, employees may need to take advantage of the New York State Paid Family Leave Family Care in order to take care of a close relative with a serious health condition including their:
- Spouse
- Domestic partner (including same and different gender partners; New York does not require legal registration)
- Child or stepchild and anyone for whom you have legal custody
- Parent or stepparent
- Parent-in-law
- Grandparent
- Grandchild
What is NY Paid Family Leave for?
In New York state, the Paid Family Leave law is there for support by providing paid time off and job protection for new parents so that an employee can bond with a new child (whether the child enters the family through birth, adoption, or foster care), as well as caring for someone who is going through a difficult pregnancy.
It also covers those who are caring for sick or injured family members. Additionally, it provides military family support to allow employees to assist loved ones when a spouse, partner, child or parent is deployed abroad as part of their active-duty military service.
The program allows eligible employees the right to take time off and will help you with paid time off, job protection, continued health insurance, and protection from discrimination and retaliation from your place of work.
Does Paid Family Leave Cover Time Off for COVID-19?
Yes. New York now allows for leave to take care of yourself or a minor dependent child when you or another family member is under an order of quarantine or isolation due to COVID-19.
Why It’s Important to Project Your Job
If employees are unable to return to work for a long time due to injury, this could cause problems with the employer. It is important to remember that in most cases where employees don’t have a contract as part of their job package, New York is an “at-will” employment state.
Put another way; your employment is considered to be, “at your own will,” Or, “at the will,” of your employer. Except in cases involving protected classes of people or when employees exercise certain legal rights, an employer can terminate an employee for little or no reason at all. So, it’s essential that you take advantage of the rights and protections afforded to you under state paid family leave and federal law.
FMLA, Paid Family Leave and Personal Injuries
FMLA Eligibility
In order to be eligible to take leave through the federal Family Medical Leave Act (FMLA), injured employees must be “eligible.” This means that they must have worked for a covered employer for at least 12 months, and the employer must have 50 or more employees within a 75-mile area. Those eligible must have worked for 1,250 hours for this employer 12 months prior to the start of their leave.
Employees can take up to 12 weeks of unpaid leave to recover from injuries. Under the terms of FMLA, you are entitled to return to your job after your leave ends.
Paid Family Leave Eligibility
Under the New York Paid Family Leave law, most employees in New York who work for private employers are eligible to take time off to care for an injured close family member. Self employed individuals may also be eligible if they have voluntarily opted in.
The minimum time worked requirements for covered employees to become eligible to take Paid Family Leave are:
- Full-time employees: After 26 consecutive weeks of employment, employees who work a regular schedule of 20 or more hours per week are eligible.
- Part-time employees: After working 175 days (non-consecutively), employees who work a regular schedule of less than 20 hours per week are eligible.
Filing for Leave After an Accident
After your or your loved one’s injury, if you are eligible for paid family and medical leave, you should contact your employer and begin the filing process right away. Be sure to have an experienced personal injury attorney on your family’s side to make sure you take the correct steps after a serious accident to apply for these benefits.
Am I covered if my job is done away with while I’m on leave?
Job Protection Under New York Law
If employers eliminate someone’s position while they are on leave because they had to care for a family member with a serious health condition or injury, they must provide their employee a job with comparable pay and similar job opportunities. There are rare instances in which employers are exempt from these requirements if they can actually prove that the person’s job was slated for elimination or that a comparable job does not exist.
What happens after 12 weeks of leave?
At the end of 12 weeks of paid family and medical leave, your boss must allow you to return to your job, or a job with equal pay and benefits. At the end of the 12 weeks, your place of employment is not required to keep you on their payroll. After 12 weeks, if you’re still unable to work, it’s important to keep in communication with your employer to make sure you are both on the same page in regards to your continued employment.
Short-Term Disability After a Serious Car, Truck, or Motorcycle Accident
Under state law, employers in New York are required to provide short-term disability insurance for people who have been on a job for at least a month. The benefit for those taking leave in New York pays 50 percent of an employee’s salary but typically cannot exceed more than $170 per week.
Employers must provide short-term disability benefits for up to 26 weeks. While short-term disability won’t protect your job, it can provide financial support while you heal or begin the process of filing for long-term disability.
Protecting My Income Through Compensation
If your injury is the result of another person’s negligence or action, you may have the right to pursue compensation through a personal injury claim. Even if you lose your position at work, there are ways in which you can be awarded compensation to offset your financial woes.
No-Fault Compensation
Section 5102 of the New York Insurance Law stipulates that a person is allowed to recover up to $2,000 a month in lost wages as the result of an injury, for a period of up to three years after an accident. This is part of the $50,000 associated with New York’s no-fault insurance requirements.
Compensation from the At-Fault Party
New York’s Paid Family Leave will cover you only so far. You may also be able to recover compensation from the person who was responsible for the accident in which you were injured. Usually, New York requires you to recover from the no-fault insurance coverage in your own policy first, but your damages may be worth more than the $50,000 minimum no-fault coverage requirement. Additionally, no-fault insurance does not provide compensation for non economic losses such as pain and suffering.
It’s important to have an experienced personal injury attorney to gather and preserve evidence of the other party’s fault in your accident. Having aggressive representation on your side may lead to significant compensation.
