FMLA and New York Paid Family Leave: Your Rights When You Need Time Off

Take a hypothetical. A medical billing coordinator in Hauppauge has worked full time for three years at a company with well over 50 employees in one office. The coordinator’s father is coming home after heart surgery and will need care for weeks. The coordinator asks human resources for time off, gets New York Paid Family Leave approved, and receives a letter saying the same weeks count as leave under the federal Family and Medical Leave Act. Eight weeks later, back at work, the coordinator is moved to a night shift and written up for “attendance,” with the leave days on the list.

Three laws decide what happened here, and each has its own door for a complaint. Below they are side by side, ending with where an employee goes when the employer punishes the leave. Our Long Island employment lawyer page covers the claims. This is general information, not advice about any one situation.

Three leave laws, three different questions

The FMLA protects the job while you are out. Paid Family Leave pays you while you care for someone else, and protects the job too. The sick leave law pays for short absences. An employee who needs more than a few days off can have rights under more than one of them at once.

The table below is the comparison, statute by statute, with the rule for each row.

The bottom row matters most when something goes wrong.

Who the FMLA covers

The federal statute has two gates. The employer must employ “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” The employee must have worked “for at least 12 months” for that employer and “for at least 1,250 hours of service with such employer during the previous 12-month period.” A worksite rule cuts out employees at a location with fewer than 50 employees within 75 miles, counted when you give notice of the need for leave.

An eligible employee gets “a total of 12 workweeks of leave during any 12-month period” for a birth, adoption or foster placement, a spouse, child or parent’s serious health condition, the employee’s own serious health condition “that makes the employee unable to perform the functions of the position,” or a military family exigency.

On return, the employee is entitled “to be restored by the employer to the position of employment held by the employee when the leave commenced,” or to “an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” The employer keeps group health coverage in place during the leave. Consequently, the FMLA is the law that covers your own medical leave, and the law that protects the job at a larger employer.

Paid Family Leave in New York: what it pays in 2026

Paid Family Leave is insurance that may be funded by employee payroll contributions, and it pays while you are out. Workers’ Compensation Law § 204(2)(a) sets the benefit at “sixty-seven percent of the employee’s average weekly wage but shall not exceed sixty-seven percent of the New York state average weekly wage in effect,” for no more than “twelve weeks during any fifty-two week calendar period.”

For 2026, the state average weekly wage is $1,833.63, so the maximum weekly benefit is $1,228.53. For leave that begins in 2027, the program has published a cap of $1,287.91; you get the rate in effect on the first day of the leave. Eligibility comes from time on the job, not from the size of the employer.

Two limits catch people. Paid Family Leave does not cover your own illness or injury; the program sends that to short-term disability benefits, and the two cannot be paid for the same days. And timing is yours to manage: notice to the employer 30 days ahead when the need is foreseeable, and the completed request to the insurer within 30 days of the start of leave “to avoid losing benefits.” A denial can go to arbitration. Consequently, file the request early and keep the confirmation.

When FMLA and Paid Family Leave run at the same time

They usually do. Workers’ Compensation Law § 206(4) provides: “Unless otherwise expressly permitted by the employer, benefits available under 29 U.S. Code Chapter 28 (The Family and Medical Leave Act) must be used concurrently with family leave benefits.” The PFL program adds that, for the two to run together, the employer “must notify the employee that the leave qualifies for both FMLA and Paid Family Leave, and that it will be designated as such.”

Under 29 C.F.R. § 825.701(a), leave that qualifies under both laws “counts against the employee’s entitlement under both laws.” One difference: an employer can require you to use accrued paid time off during FMLA leave, but under the PFL program’s rules it cannot require you to use paid time off during Paid Family Leave.

Consequently, the 12 weeks are usually the same 12 weeks, not 24; keep the designation letter.

Paid sick leave and prenatal leave

For shorter absences, Labor Law § 196-b requires paid sick leave at every employer with five or more employees, and at smaller employers with more than $1 million in net income: up to 40 hours a year, or 56 hours at employers with 100 or more employees. The employer “may not require the disclosure of confidential information” about the condition as a condition of the leave.

Since January 1, 2025, the same section requires “twenty hours of paid prenatal personal leave during any fifty-two week calendar period,” for pregnancy-related care. New York City adds its own protected time off law; see our post on the 2026 changes to New York City sick leave. A pregnancy-related condition that needs more than leave, such as a schedule change or lighter duty, is an accommodation question under Executive Law § 296(3)(a), which bars refusing “reasonable accommodations to the known disabilities, or pregnancy-related conditions” of an employee; our Long Island pregnancy discrimination lawyer page covers those claims, and our post on remote work as a disability accommodation covers the disability side. Consequently, ask for sick and prenatal leave in writing, and do not volunteer a diagnosis the law does not require.

Interference and retaliation

The FMLA states two prohibitions. It is unlawful “to interfere with, restrain, or deny the exercise of or the attempt to exercise” any FMLA right, and unlawful “to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful” by the statute. The Department of Labor’s regulation says interference includes “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” Retaliation is punishment for having used it.

The Department of Labor’s regulation draws the line at the employee file. Under 29 C.F.R. § 825.220(c), “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies.” Our post on attendance points for disability-related absences covers the same problem under the Human Rights Law.

Every one of these leave laws has a retaliation hook. That’s always the big play. An employer that isn’t happy with an employee who takes the leave the law gives them can end up on the butt end of a lawsuit for retaliation. The taking of the leave is your protected activity, so the timing matters: you ask for leave, you take it, and when you come back you’re written up or fired.

Retaliation in New York is never one statute. A complaint to the employer about a violation of the Labor Law, including the sick leave law, is protected by Labor Law § 215, which allows reinstatement or front pay, lost compensation and fees, and under which the court “shall award liquidated damages” of up to $20,000; § 215 does not reach State or municipal employees. Section 215 also bars retaliation “because such employee has used any legally protected absence pursuant to federal, local, or state law,” and it counts “assessing any demerit, occurrence, any other point” that could lead to discipline as retaliation. An employee who discloses or objects to an activity, policy or practice the employee reasonably believes violates a law, rule or regulation is protected by Labor Law § 740, which adds a civil penalty and punitive damages “if the violation was willful, malicious or wanton.” A complaint about pregnancy or disability discrimination brings in Executive Law § 296(7). Our post on the retaliation standard after 2019 explains how those claims are proved.

Which door to use

The FMLA allows a civil action “in any Federal or State court of competent jurisdiction.” Workers’ Compensation Law § 203-a applies § 120 to Paid Family Leave: a complaint to the Workers’ Compensation Board “within two years,” and an order paying “any loss of compensation arising out of such discrimination.”

So you have to know the difference between an administrative law and a litigation law because they’re two different mechanisms to enforce your rights. So a Paid Family Leave complaint goes to the Workers’ Compensation Board. That’s the administrative mechanism. The Family and Medical Leave Act gives you a right to go to court for damages. And then Labor Law section 215 protects any legally protected absence, so punishing you for that leave can be a lawsuit under 215 as well. So same leave, different doors.

Consequently, the first question after a write-up or a firing that follows leave is which laws the leave fell under; the designation letter usually answers it.

You’ve got to document better. Put the leave request in writing, get the approval, keep the emails regarding your return date. Keep all of that in the file, not just in someone’s memory. So when the employer says that the write-up had no relation to the leave, the dates on those documents are going to be important.

Back to the billing coordinator in Hauppauge

The coordinator’s leave was both Paid Family Leave and FMLA leave, and the letter said so. On return, both laws require the same or an equivalent position, and the FMLA regulation says the employee “is ordinarily entitled to return to the same shift or the same or an equivalent work schedule.” The attendance write-up that lists the leave days runs into the regulation’s bar on using FMLA leave “as a negative factor” in “disciplinary actions.” The same write-up assesses points for a legally protected absence, which Labor Law § 215 treats as retaliation. The FMLA and § 215 claims go to court; a Paid Family Leave complaint can also go to the Workers’ Compensation Board. Each clock is two years, three for a willful FMLA violation.

In either forum, the coordinator’s first step is the same: keep the request, the designation letter and the write-up. For school district employees, whose leave rules have their own wrinkles, see our post on disability, accommodation and FMLA rights for New York school employees.

Sources

• 29 U.S.C. § 2611, Definitions
• 29 U.S.C. § 2612, Leave requirement
• 29 U.S.C. § 2614, Employment and benefits protection
• 29 U.S.C. § 2615, Prohibited acts
• 29 U.S.C. § 2617, Enforcement
• 29 C.F.R. § 825.220, Protection for employees who request leave or otherwise assert FMLA rights
• 29 C.F.R. § 825.215, Equivalent position
• 29 C.F.R. § 825.701, Interaction with State laws
• New York Workers’ Compensation Law § 201, Definitions
• New York Workers’ Compensation Law § 204, Disability and family leave during employment
• New York Workers’ Compensation Law § 206, Non-duplication of benefits
• New York Workers’ Compensation Law § 120, Discrimination against employees
• New York Workers’ Compensation Law § 203-a, Retaliatory action prohibited for family leave
• New York Workers’ Compensation Law § 203-b, Reinstatement following family leave
• New York Labor Law § 196-b, Sick leave requirements
• New York Labor Law § 215, Prohibited retaliation
• New York Labor Law § 740, Retaliatory action by employers
• New York Executive Law § 296, Unlawful discriminatory practices
• New York State Paid Family Leave, Updates for 2026
• New York State Paid Family Leave, Eligibility
• New York State Paid Family Leave, Paid Family Leave and Other Benefits
• NYC Department of Consumer and Worker Protection, Protected Time Off Law

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Leave rights are written to be used. When using them costs an employee a shift, a title or a job, the question is which law the leave fell under and which door that law opens. Our disability discrimination practice and retaliation practice handle those claims.

If you were written up, demoted or fired after asking for or taking family, medical or sick leave, call (516) 750-0595 with your leave request and the designation letter in hand, or request a free case review.