New York's Paid Family Leave Law and Birth Loss Coverage

Dan Clark: This week we take a look at New York's paid family leave law. When New York first passed paid family leave in 2016, the program was considered among the most generous in the country, but some lawmakers say it still doesn't go far enough for parents grieving the loss of their child.

Alexis Young reports.

Alexis Young: New York State paid family leave allows eligible workers to take up to 12 weeks off within one year at 67% of their pay.

Martin Patrick: For three different items, one is for bonding with a newborn or adopted child, the second one is taking being the main caregiver for a family member with a serious health condition, and the third item is what's called military exigencies. That’s where a military member of the employee's family asked to serve or asked to go on tour, and the employee can spend time with them before they go out on service.

AY: Martin Patrick is the senior consultant manager at GTM Payroll & HR.

An HR (human resources) department is frequently involved when an eligible employee applies for paid family leave.

Paid family leave was passed in New York in 2016. The program was among the most generous in the country at the time, and it was even strengthened in November 2021 to include siblings, whether that be half-siblings, step-siblings, biological or adopted.

Still, lawmakers say the language in workers compensation law, specifically paid family leave, has left some New Yorkers in vulnerable positions.

MP: The pay leaves is administered by the insurance company that the employer contracts with. So if the insurance company received notice that a child has passed away or a relative has passed away that the employees taken care of, they're going to revoke the leave. It's up to the insurance company to do that.

AY: This can be particularly trying for pregnant people and families who experience stillbirths.

PUSH for Empowered Pregnancy is a stillbirth awareness and prevention organization. Their main goal is eradicating preventable stillbirths. PUSH supports the bill, sponsored by Assemblywoman Jenifer Rajkumar and Senator Timothy Kennedy that would change the workers compensation law to provide paid family leave following a stillbirth.

Assemblywoman Rodneyse Bichotte Hermelyn openly supported the bill at a press conference. She has a personal connection to the issue.

Rodneyse Bichotte Hermelyn: When you think of the definition of family paid leave, you will notice that in the language it says bonding. Bonding with a child, bonding with a loved one, and I think that people's perspective perception is that, well, if you just went through a stillbirth experience, you do not have a child to bond with.

AY: The assemblywoman had her son, Jonah, in 2016, the same year paid family leave was passed, but events after her delivery made her question continuing on as a member of the legislature.

RBH: He came out living for an hour or two and then he passed, and after that whole experience, I had nothing, no resources, nothing. In fact, people had just expected me to get up and work. I didn't even have a chance to mourn my son.

There were a number of people, some were advocates on different issues who felt that they didn't understand, why I needed to take time off because I didn't have a child. But I felt that it was inhumane, and I had questioned whether I wanted to do this anymore.

AY: When Samantha Palermo and her partner became pregnant after a long bout of fertility issues, they were excited to bring their son Archer into their world, but Palermo says Archer stopped moving near the end of her pregnancy, and during an impromptu hospital visit, Archer was stillborn.

Samantha Palermo: When I finally got home, took a couple of days, but I go to call work and they said, we need a certificate of live birth, and I lost it…. I lost it.

I said, Archer's not with us, he passed away, and she took a moment and then she says, I'm sorry, but we're no longer going to be able to approve your paid family leave.

AY: Black mothers are twice as likely to experience a stillbirth as white mothers. Age also plays a factor with mothers under age 20 or over age 40 at higher risk.

Obstetrician & Gynecologist Dr. Patty Yuen, affiliated with PUSH for Empowered Pregnancy, feels moms should have time to grieve the loss of their child and physically heal from their pregnancy.

Patty Yuen: I think a woman with the stillbirths should definitely still be entitled to those full paid family leave after stillbirth experience. A woman still needs the same amount of time healing physically from the delivery and the pregnancy. Now, in addition to that, emotional support is extremely important for these women, for obvious reasons.

AY: Without paid family leave, senior HR consultant manager Martin Patrick suggests parents who lose a child can look to other benefits.

MP: After someone has tragically passed away, that's more of a bereavement procedures situation because the family leave concept is you're either bonding or taking care of a person with a serious health condition, and once that serious health condition or the child is no longer there, I think that really stretches into bereavement more than it does paid family leave.

An employee whose distress could apply for disability if they can't work because of the situation.

AY: Cassidy Perrone is a lawyer and New York native who now lives in Connecticut but practices in New York State. When she became pregnant and gave birth to her daughter Olivia, she says her only choice after her daughter's passing was taking short term disability, which is $170 a week for up to 26 weeks, far less than her previously approved amount of $1100 through paid family leave.

Cassidy Perrone: I was 36 weeks pregnant. I was right at the finish line, only to be told, I'm sorry, there is no heartbeat. My husband and I walked out of that hospital empty handed, brokenhearted, and unsure how we were going to carry on without her.

Seven days later, we buried our daughter, and the very next day I receive a call indicating to my employer that they are revoking my previously approved paid family leave because my daughter had died.

AY: Perrone is expecting again, but after her experience was paid family leave in New York State, she began practicing law in Connecticut, where she says leave policies are less likely to cause financial hardship in the event of a stillbirth.

Taking the time she needed almost depleted her and her husband's savings. Perrone said going back to work too quickly after her daughter's passing could have exposed her to legal malpractice.

CP: So many women nowadays that are educated and are the primary breadwinners in their family being forced to choose between following the advice of their doctors or going back to work to pay their bills, it's unacceptable.

Going back to work to practice law after two weeks postpartum would have put me in a situation of malpractice, but that is what New York put me in. That is the position that New York put me in.

AY: Patrick said supplemental disability could yield funds comparable to paid family leave, greater than $170 per week through temporary disability.

MP: Usually, it's paid by the employee, and it's usually a percentage of their salary, and depending on the waiting period for it to start, they can certainly make up the difference of their regular pay by supplemental insurance.

AY: Supplemental insurance could be the quicker solution for mothers, birthing partners and families in New York, but lawmakers are still working to amend worker's compensation law and have been since the 2019-2020 legislative session.

For New York Now, inside the state capitol, Alexis Young.

DC: The Senate has now passed a bill on that, but nothing just yet in the assembly.

Dan Clark: Yet another state lawmaker has been accused of sexual assault.

Two women say assembly member Juan Ardila tried to sexually assault them at a party in 2015.

Ardila has not denied the allegations and several lawmakers, including Governor Kathy Hochul, have called on him to resign.

Assembly Speaker Carl Heastie stopped short of doing the same, at least as of Friday morning, and said that's between Ardila and his district.

Carl Heastie: The allegations that were made, you know, serious and the behavior that was described is totally unacceptable, but I think that's a decision that Juan and his constituents are going to have to think about.

DC: We'll let you know if anything happens there.