Updated: December 19, 2016
In addition to the leave provided by your employer’s discretionary policies on vacation time, sick leave, personal days, or paid time off (PTO), you may have a legal right to take time off work for specific reasons under federal and New York laws. For example, if you are caring for an ailing family member or recovering from childbirth, you may have a right to leave under the federal Family and Medical Leave Act (FMLA). New York law provides additional leave rights, including the right to military family leave, adoption leave, and more. Employees may also collect temporary disability benefits when they are unable to work due to a disabling condition (including pregnancy). And, New York recently passed a groundbreaking paid family leave law, to be phased in starting in 2018.
This article provides an overview of your right to time off from work in New York. For more information, see our page on employee leave rights.
The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take up to 12 weeks of unpaid leave per year to care for a seriously ill family member (spouse, parent, or child), recuperate from their own serious health conditions, bond with a new child, or handle certain practical matters arising from a family member’s military service. The FMLA also requires employers to give employees up to 26 weeks off to care for a family member who suffered or exacerbated a serious illness or injury while serving in the military. (For purposes of this military family leave provision only, employees may take leave to care for a wider set of family members, including siblings, grandparents, and cousins, if they are next of kin to an injured service member.)
The FMLA applies to employers in all states with at least 50 employees. Employees are eligible only if they have worked for the employer for at least 12 months and have worked 1,250 hours in the 12 months before taking leave. (Learn much more about your rights under the FMLA at our Taking Family and Medical Leave page.)
Some states have created laws that provide employees with leave for family and medical reasons. Sometimes these laws overlap with the FMLA and don’t create additional rights. Often, however, state law applies to a wider set of employers, has more relaxed eligibility requirements for employees, or covers a broader set of family members. New York also gives employees the right to take unpaid leave for adoption and spending time with a family member who is in the military:
New York provides two types of paid leave: temporary disability insurance (TDI) benefits and paid family leave benefits (starting in 2018).
New York has a state temporary disability insurance program. Eligible employees who are temporarily unable to work due to disability (including pregnancy) can receive up to 50% of their usual wages while they are out of work. (For more information, see New York’s Guide to Disability Benefits.)
This program does not give employees the right to protected time off work. It only provides for partial wage replacement while employees are out on leave.
In 2018, New York will begin phasing in its paid family leave program. Like the temporary disability program, it will provide partial wage replacement while employees are off work for covered reasons, paid from a state insurance program that is funded by employee paycheck withholding. Unlike the temporary disability program, it will provide not only compensation but also a right to time off work, with reinstatement when an employee's leave is through.
Employees will be eligible for leave if they have worked for at least 26 weeks for the employer. Employees may take leave for these reasons:
The amount of leave and the amount of pay available will be phased in. In the first year of the program (2018), employees can take up to eight weeks off and receive up to half of their usual wages. By 2021, employees will be able to take up to 12 weeks off and receive up to 67% of their usual wages. Learn more about New York paid family leave.
Another federal law, the Unformed Services Employment and Reemployment Rights Act (USERRA) gives eligible employees the right to be reinstated to their jobs after taking up to five years off for service in the U.S. military. (Find out all about USERRA in Nolo's article, Taking Military Leave.) Employers may not discriminate against employees based on their military service. And, employees may be fired only for good cause for a period of up to one year after they return from service, even if they would otherwise work at will. (See Employment At Will: What Does It Mean? to learn more.)
The laws of many states extend similar rights to employees who serve in the state’s military, including the right to take time off from work and to be reinstated afterwards. In New York, members of the U.S. armed forces or organized militia are entitled to unpaid leave, with reinstatement upon their return, for:
Employees may not be discharged without cause for one year after they are reinstated following military service. Employers may not discriminate against employees based on their state or federal military service.
New York law gives employees the right to take time off work, without fear of retaliation, for the civic responsibility of voting. Employees are entitled to as much time off at the start or end of their shifts as needed to vote, when combined with their off-duty time. Up to two of these hours must be paid. However, employers need not allow employees to take time off if they will have four consecutive hours off when the polls are open, at the beginning or end of a shift. Employees must give notice of the need for time off between two and ten working days before the election.
Employers must also allow employees to take time off to serve on a jury. This time off is unpaid, except that employers with at least ten employees must pay the first $40 of the employee’s wages for the first three days of jury service. However, special rules apply to exempt employees. Under federal law, employers typically cannot deduct an exempt, salaried employee’s pay for time spent serving on a jury, unless the employee did no work for the entire week. For more information, see our article on pay docking.