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S06741 Actions:

BILL NOS06741
 
03/05/2014REFERRED TO LABOR
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S06741 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6741
 
                    IN SENATE
 
                                      March 5, 2014
                                       ___________
 
        Introduced  by  Sens.  SAVINO,  KLEIN, VALESKY, CARLUCCI, AVELLA -- read
          twice and ordered printed, and when printed to  be  committed  to  the
          Committee on Labor
 
        AN  ACT to amend the workers' compensation law and the insurance law, in
          relation to establishing family care benefits
 
          The People of the State of New York, represented in Senate and  Assem-

        bly, do enact as follows:
 
     1    Section  1.  Subdivision 9 of section 201 of the workers' compensation
     2  law is amended by adding a new paragraph C to read as follows:
     3    C. "Disability" also includes family care.
     4    § 2. Subdivision 14 of section 201 of the workers'  compensation  law,
     5  as added by chapter 600 of the laws of 1949 and as renumbered by chapter
     6  438  of  the laws of 1964, is amended, and nine new subdivisions 15, 16,
     7  17, 18, 19, 20, 21, 22 and 23 are added to read as follows:
     8    14. "A day of disability" means any day  on  which  the  employee  was
     9  prevented  from performing work because of disability, including any day
    10  which the employee uses for family care, and for which [he] the employee
    11  has not received his or her regular remuneration.

    12    15. "Family care" means any leave taken by an employee from performing
    13  work:
    14    A. to participate in providing care, including physical or  psycholog-
    15  ical care, for a family member of the employee made necessary by a seri-
    16  ous health condition of the family member; or
    17    B.  to  bond  with the employee's child during the first twelve months
    18  after the child's birth, or the first twelve months after the  placement
    19  of the child for adoption or foster care with the employee.
    20    16. "Child" means a biological, adopted or foster child, a step-child,
    21  a  legal ward or a child of a person who stands in parental relationship
    22  to the child who is:
    23    A. less than eighteen years of age; or

    24    B. eighteen years of age or older and incapable of  self-care  because
    25  of a mental or physical disability.
    26    17.  "Domestic  partner" has the same meaning set forth in subdivision
    27  one of section four of this chapter.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13578-02-4

        S. 6741                             2
 
     1    18. "Serious health condition" means an illness,  injury,  impairment,
     2  or physical or mental condition that:
     3    A.  requires  inpatient  care  in  a  hospital, hospice or residential
     4  health care facility; or

     5    B. requires continuing treatment by a health care provider.
     6    19. "Parent" means a biological or adoptive parent or  step-parent  of
     7  an  employee,  or  a  person  who  stood  in parental relationship to an
     8  employee when the employee was:
     9    A. less than eighteen years of age; or
    10    B. eighteen years of age or older and incapable of  self-care  because
    11  of a mental or physical disability.
    12    20.  "Family  member" means a child, spouse, domestic partner, parent,
    13  grandchild, grandparent, or mother or father of a domestic partner.
    14    21. "Persons who stand in parental relationship to  a  child"  include
    15  those with day-to-day responsibilities to care for and provide financial

    16  support of a child, or, in the case of an employee, who had such respon-
    17  sibility for the employee when the employee was a child. A biological or
    18  legal relationship shall not be necessary.
    19    22. "Grandchild" means the child of a child.
    20    23.  "Health  care  provider"  means a health care practitioner who is
    21  licensed under the relevant federal or state laws  to  provide  medical,
    22  emergency  or  health  services, and is treating an employee or a family
    23  member for a serious health condition.
    24    § 3. Section 202 of the workers' compensation law is amended by adding
    25  a new subdivision 1-a to read as follows:
    26    1-a. Solely for the purposes of the provisions of this article  relat-
    27  ing  to  the  provision  of  benefits, rights and privileges relating to

    28  family care leave, "covered employer" shall include  the  state  or  any
    29  political  or  civil subdivision thereof, and employers with twenty-five
    30  or more employees.
    31    § 4. The workers' compensation  law  is  amended  by  adding  two  new
    32  sections 203-a and 203-b to read as follows:
    33    §  203-a. Retaliatory action prohibited.  1. The provisions of section
    34  one hundred twenty of this chapter and section two hundred forty-one  of
    35  this  article  shall  be applicable to family care leave as if fully set
    36  forth in this section.
    37    2. Nothing in this section shall be deemed  to  diminish  the  rights,
    38  privileges  or  remedies of any employee under any collective bargaining
    39  agreement or employment contract; except  that  the  institution  of  an

    40  action  in  accordance with this section shall be deemed a waiver of the
    41  rights and remedies available under any  other  contract  or  collective
    42  bargaining agreement.
    43    § 203-b. Family care leave. Any eligible employee of a covered employ-
    44  er  who  takes family care leave on or after January first, two thousand
    45  fifteen under this section shall be entitled, on return from such leave,
    46  to be restored by his or her employer to the position of employment held
    47  by the employee when the leave commenced, or to be restored to a  compa-
    48  rable  position with comparable employment benefits, pay and other terms
    49  and conditions of employment. The taking of leave  for  the  purpose  of
    50  family  care  shall  not  result  in  the loss of any employment benefit

    51  accrued prior to the date on which the leave commenced. Nothing in  this
    52  section  shall  be  construed  to  entitle  any restored employee to the
    53  accrual of any seniority or employment benefits  during  any  period  of
    54  leave,  or  any  right,  benefit or position to which the employee would
    55  have been entitled had the employee not taken such leave. A violation of
    56  this section shall be a violation of section one hundred twenty of  this

        S. 6741                             3
 
     1  chapter,  and  all  remedies  and  penalties available under section one
     2  hundred twenty of this chapter shall be available for violations of this
     3  section as if fully set forth in this section.

     4    § 5. Section 204 of the workers' compensation law is amended by adding
     5  a new subdivision 3 to read as follows:
     6    3.  The weekly benefit which an employee on family care leave is enti-
     7  tled to receive for disability commencing on or after January first, two
     8  thousand fifteen, but before January first, two thousand sixteen,  shall
     9  be  fifty  percent of the employee's average weekly wage, but in no case
    10  shall such benefit exceed thirty-five percent of the  statewide  average
    11  weekly  wage  as  determined  by  the department pursuant to subdivision
    12  sixteen of section two of this chapter.   The weekly benefit  which  the
    13  disabled employee is entitled to receive for disability commencing on or
    14  after January first, two thousand sixteen, but before January first, two

    15  thousand  seventeen,  shall  be  fifty percent of the employee's average
    16  weekly wage, but in no case shall such benefit exceed forty  percent  of
    17  the statewide average weekly wage as determined by the department pursu-
    18  ant  to  subdivision  sixteen of section two of this chapter. The weekly
    19  benefit which the disabled employee is entitled to receive for disabili-
    20  ty commencing on or after January first, two thousand seventeen shall be
    21  fifty percent of the employee's average weekly  wage,  but  in  no  case
    22  shall  such benefit exceed fifty percent of the statewide average weekly
    23  wage as determined by the department pursuant to subdivision sixteen  of
    24  section two of this chapter.
    25    §  6.  Subdivisions  1,  2, 3, 4, and 8 of section 205 of the workers'

    26  compensation law, subdivision 1 as amended by chapter 651 of the laws of
    27  1958, subdivision 2 as amended by chapter 270 of the laws  of  1990  and
    28  subdivisions  3, 4 and 8 as added by chapter 600 of the laws of 1949 and
    29  as renumbered by chapter 352 of the laws of 1981, are amended and a  new
    30  subdivision 9 is added to read as follows:
    31    1.  (a) For disability resulting from injury, sickness or pregnancy of
    32  an employee, for more than twenty-six weeks during a period of fifty-two
    33  consecutive calendar weeks or during any one period of disability, or
    34    (b) for family care, for more  than  six  weeks  during  a  period  of
    35  fifty-two  consecutive calendar weeks or during any one period of family
    36  care;
    37    2. for any period of disability resulting from the injury, sickness or

    38  pregnancy of an employee during which an employee is not under the  care
    39  of  a  duly  licensed  physician or with respect to disability resulting
    40  from a condition of the foot which may lawfully be  treated  by  a  duly
    41  registered  and  licensed  podiatrist  of  the state of New York or with
    42  respect to a disability resulting from a condition which may lawfully be
    43  treated by a duly registered and licensed chiropractor of the  state  of
    44  New  York  or  with  respect  to a disability resulting from a condition
    45  which may lawfully be treated by a duly licensed dentist of the state of
    46  New York or with respect to a  disability  resulting  from  a  condition
    47  which may lawfully be treated by a duly registered and licensed psychol-
    48  ogist of the state of New York or with respect to a disability resulting
    49  from a condition which may lawfully be treated by a duly certified nurse

    50  midwife,  for  any period of such disability during which an employee is
    51  neither under the care of a physician nor a podiatrist, nor a chiroprac-
    52  tor, nor a dentist, nor a psychologist, nor a certified  nurse  midwife;
    53  and for any period of disability during which an employee who adheres to
    54  the  faith or teachings of any church or denomination and who in accord-
    55  ance with its creed, tenets or principles depends for healing upon pray-
    56  er through spiritual means alone in the practice  of  religion,  is  not

        S. 6741                             4
 
     1  under the care of a practitioner duly accredited by the church or denom-
     2  ination,  and  provided such employee shall submit to all physical exam-
     3  inations as required by this chapter[.];
     4    3. for any disability resulting from injury or sickness of an employee

     5  occasioned by the wilful intention of the employee to bring about injury
     6  to  or  the sickness of himself or another, or resulting from any injury
     7  or sickness sustained in the perpetration by the employee of an  illegal
     8  act;
     9    4.  for any day of disability during which the employee performed work
    10  for remuneration or profit, but not including any remuneration  received
    11  for caring for a foster or adopted child or other individual residing in
    12  the employee's place of residence;
    13    8.  for any disability resulting from an injury, sickness or pregnancy
    14  of the employee commencing before the employee becomes eligible to bene-
    15  fits hereunder [or commencing prior  to  July  first,  nineteen  hundred
    16  fifty,  but  this  shall not preclude benefits for recurrence after July

    17  first, nineteen hundred fifty, of a disability commencing  prior  there-
    18  to.]; or
    19    9. for any day of absence from work required pursuant to any discipli-
    20  nary  process,  or,  with  regard  to  family  care benefits, any day of
    21  absence from work resulting for injury, sickness  or  pregnancy  of  the
    22  employee,  including  any  leave  taken  under  section seventy-three or
    23  seventy-five of the civil service law.
    24    § 7. The workers' compensation law is amended by adding a new  section
    25  205-a to read as follows:
    26    §  205-a. Relationship between disability benefits for family care and
    27  for the employee's own injury, sickness or pregnancy.   The  receipt  of
    28  benefits  for disability resulting from injury, sickness or pregnancy of

    29  the employee, shall not count toward any time limitation under  subdivi-
    30  sion  one  of section two hundred five of this article on the receipt of
    31  benefits for family care, and the receipt of benefits  for  family  care
    32  shall  not  count  toward  any  time limitation under subdivision one of
    33  section two hundred five of this article on the receipt of benefits  for
    34  disability resulting from injury, sickness or pregnancy to the employee,
    35  except  that  an  employee  may  receive disability benefits on only one
    36  claim at any time.
    37    § 8. Subdivision 3 of section 209 of the workers' compensation law, as
    38  amended by chapter 415 of the laws of 1983, is amended and a new  subdi-
    39  vision 6 is added to read as follows:
    40    3.  The  contribution  of each such employee to the cost of disability

    41  benefits provided by this article shall be one-half of one per centum of
    42  the employee's wages paid to him  on  and  after  July  first,  nineteen
    43  hundred fifty, but not in excess of sixty cents per week for the cost of
    44  disability benefits for injury, sickness or pregnancy of the employee.
    45    6. Effective during the two thousand fifteen calendar year family care
    46  benefits  shall  be  provided at no cost to an eligible employee through
    47  the state general fund. This exact level of funding shall be provided by
    48  the state each calendar year for  family  care  benefits.  During  every
    49  subsequent  calendar year, the contribution of each such employee to the
    50  cost of family care benefits shall be set by regulation  of  the  super-

    51  intendent  of  financial services. Employers shall not contribute toward
    52  the cost of family care benefits.
    53    § 9. Section 211 of the workers' compensation law is amended by adding
    54  two new subdivisions 7 and 8 to read as follows:
    55    7. Such family care benefits as are provided for in this article shall
    56  be in addition to, and shall not amend, repeal or replace, the terms  of

        S. 6741                             5
 
     1  any agreement that is collectively negotiated between an employer and an
     2  employee  organization,  including  agreement  or  interest  arbitration
     3  awards made pursuant to article fourteen of the civil service law.
     4    8.  Nothing  in this article shall require an employer to use the same

     5  carrier to provide benefits required by or permissible under this  arti-
     6  cle  for  disability  resulting from injury, sickness to or pregnancy of
     7  the employee as it uses to provide benefits required by  or  permissible
     8  under  this  article  for  family  care. An employer may use a different
     9  means, among those set forth in subdivisions one through  five  of  this
    10  section,  to  provide  benefits  required by this article for disability
    11  resulting from injury or sickness to or pregnancy of the employee,  from
    12  the  means  used to provide benefits required by this article for family
    13  care.
    14    § 10. The workers' compensation law is amended by adding a new section
    15  211-a to read as follows:

    16    § 211-a. Public employees; employee option. 1. For  purposes  of  this
    17  section:
    18    (a)  "Public  employee" means any employee of the state, any political
    19  subdivision of the state, a public authority, or any other  governmental
    20  agency or instrumentality.
    21    (b)  "Public  employer"  means the state, any political subdivision of
    22  the state, a public authority,  or  any  other  governmental  agency  or
    23  instrumentality thereof.
    24    (c)  "Employee  organization"  shall  have  the  meaning  set forth in
    25  section two hundred one of the civil service law.
    26    2. Public employers shall provide benefits for family care  to  public
    27  employees  where  an  employee organization that represents those public

    28  employees elects to have family care  benefits  provided  in  accordance
    29  with  the  procedures  and  terms set forth in subdivision three of this
    30  section.
    31    3. An employee organization may elect to  have  family  care  benefits
    32  provided on behalf of the public employees it represents:
    33    (a)  at  any time upon ninety days notice to any public employer which
    34  is not providing disability benefits for injury, sickness  or  pregnancy
    35  of  a  public employee under section two hundred twelve of this article,
    36  or which is self-insured for such benefits;
    37    (b) for any public employer which is providing disability benefits for
    38  injury, sickness or pregnancy of a public  employee  under  section  two

    39  hundred  twelve  of this article, upon notice at least ninety days prior
    40  to the expiration of the public employer's  insurance  policy  for  such
    41  benefits,  which  election  shall  be effective only for the time period
    42  covered by any subsequent policy or renewal; or
    43    (c) at any time as is mutually agreed upon between the employee organ-
    44  ization and any public  employer.  An  employee  organization  that  has
    45  elected to have the family care benefit provided may opt out of it with-
    46  in  the  time  periods,  and effective upon the same dates, set forth in
    47  this paragraph.
    48    4. In the absence of any contrary statement in a collectively  negoti-
    49  ated agreement under article fourteen of the civil service law, a public

    50  employer  may  require public employees who opt in under this section to
    51  contribute the family care cost as set forth in section two hundred nine
    52  of this article.
    53    § 11. Subdivisions 1, 2, 3 and  4  of  section  217  of  the  workers'
    54  compensation law, subdivision 1 as amended by chapter 167 of the laws of
    55  1999,  subdivisions  2  and  3  as amended by chapter 270 of the laws of

        S. 6741                             6
 
     1  1990, and subdivision 4 as added by chapter 600 of the laws of 1949, are
     2  amended to read as follows:
     3    1.  (a)  Written  notice and proof of disability shall be furnished to
     4  the employer by or on behalf of the employee claiming  benefits  or,  in
     5  the  case of a claimant under section two hundred seven of this article,

     6  to the chair, within thirty days after commencement  of  the  period  of
     7  disability.  Additional proof shall be furnished thereafter from time to
     8  time as the employer or carrier or chair may require but not more  often
     9  than once each week. Such proof shall include:
    10    (i) in the case of disability resulting from injury, sickness or preg-
    11  nancy  of  the  employee,  a  statement  of disability by the employee's
    12  attending [physician or attending podiatrist or  attending  chiropractor
    13  or  attending  dentist  or attending psychologist or attending certified
    14  nurse midwife, or in the case of an employee who adheres to the faith or
    15  teachings of any church or denomination, and who in accordance with  its
    16  creed,  tenets  or  principles  depends  for healing upon prayer through

    17  spiritual means alone in the practice  of  religion,  by  an  accredited
    18  practitioner,  containing  facts  and  opinions as to such disability in
    19  compliance with regulations of the chair.] health care provider; and
    20    (ii) in the case of family care for bonding with a new child, a  birth
    21  certificate,  certificate of adoption, or other competent evidence show-
    22  ing that the employee is the parent of a child within twelve  months  of
    23  that  child's  birth  or  placement for adoption or foster care with the
    24  employee.
    25    (b) Failure to furnish notice or proof within  the  time  and  in  the
    26  manner  [above]  provided in paragraph (a) of this subdivision shall not
    27  invalidate the claim but no benefits shall be required to  be  paid  for

    28  any  period  more than two weeks prior to the date on which the required
    29  proof is furnished unless it shall be shown to the satisfaction  of  the
    30  chair  not  to  have  been reasonably possible to furnish such notice or
    31  proof and that such notice or proof was furnished as soon  as  possible;
    32  provided,  however,  that  no benefits shall be paid unless the required
    33  proof of disability is furnished within twenty-six weeks after commence-
    34  ment of the period of disability.   No limitation of  time  provided  in
    35  this  section  shall  run as against any person who is mentally incompe-
    36  tent, or physically incapable of providing such notice as a result of  a
    37  serious  medical  condition,  or  a  minor so long as such person has no
    38  guardian of the person and/or property.
    39    2. An employee claiming benefits for the employee's  injury,  sickness

    40  or  pregnancy  shall,  as  requested  by the employer or carrier, submit
    41  himself or herself at intervals, but not more  than  once  a  week,  for
    42  examination  by a [physician or podiatrist or chiropractor or dentist or
    43  psychologist or certified nurse midwife] relevant health  care  provider
    44  designated  by  the  employer or carrier. All such examinations shall be
    45  without cost to the employee and shall be held at a reasonable time  and
    46  place.
    47    3. The chair may direct the claimant who seeks disability benefits for
    48  his  or  her injury, sickness or pregnancy to submit to examination by a
    49  [physician or podiatrist or chiropractor  or  dentist  or  psychologist]
    50  relevant  health  care  provider designated by him or her in any case in

    51  which the claim to disability benefits is contested and in claims  aris-
    52  ing  under section two hundred seven of this article, and in other cases
    53  as the chair or board may require.
    54    4. Refusal of the claimant without good cause to submit  to  any  such
    55  examination  shall disqualify [him] the claimant from all benefits here-

        S. 6741                             7
 
     1  under for the period of such refusal,  except  as  to  benefits  already
     2  paid.
     3    §  12.  Subdivision 2 of section 229 of the workers' compensation law,
     4  as added by chapter 271 of the laws of  1985,  is  amended  to  read  as
     5  follows:
     6    2.  (a) Whenever an employee of a covered employer who is eligible for
     7  benefits under section two hundred four of this article shall be  absent

     8  from  work due to a disability as defined in subdivision nine of section
     9  two hundred one of this article for more than  seven  consecutive  days,
    10  the  employer shall provide the employee with a written statement of the
    11  employee's rights under this article in a form prescribed by [the chair-
    12  man] chair. The statement shall be provided to the employee within  five
    13  business  days  after  the employee's seventh consecutive day of absence
    14  due to disability or within five business days after the employer  knows
    15  or  should know that the employee's absence is due to disability, which-
    16  ever is later.
    17    (b) Each covered employer shall provide each employee with a typewrit-
    18  ten, printed or electronic notice in a form  prescribed  by  the  chair,
    19  stating  that  the  employer  has provided for the payment of disability

    20  benefits as required by this article within thirty days of the effective
    21  date of this paragraph.  Each covered employer shall provide such notice
    22  to all new employees within thirty days of their first day of work.
    23    § 13. Subdivision 2 of section 76 of the workers' compensation law, as
    24  added by chapter 600 of the laws of 1949, is amended to read as follows:
    25    2. The purposes of the state insurance fund herein created are  hereby
    26  enlarged to provide [for the] insurance [by the state insurance fund of]
    27  for  the payment of the benefits required by section two hundred four of
    28  this chapter, including benefits for family care provided either in  the
    29  same  policy  with  or in a separate policy from benefits for disability

    30  resulting from injury or sickness to or pregnancy of an employee, and as
    31  provided pursuant to section two hundred eleven-a of this  chapter.    A
    32  separate  fund  is hereby created within the state insurance fund, which
    33  shall be known as  the  "disability  benefits  fund",  and  which  shall
    34  consist  of  all premiums received and paid into said fund on account of
    35  such insurance, all securities acquired by and through the use of moneys
    36  belonging to said fund and of interest earned upon moneys  belonging  to
    37  said fund and deposited or invested as herein provided.  Said disability
    38  benefits  fund  shall be applicable to the payment of benefits, expenses
    39  and assessments on account of insurance written pursuant to article nine
    40  of this chapter.
    41    § 14. Paragraph 3 of subsection (a) of section 1113 of  the  insurance
    42  law is amended to read as follows:

    43    (3) "Accident and health insurance," means (i) insurance against death
    44  or  personal  injury  by  accident  or by any specified kind or kinds of
    45  accident and insurance  against  sickness,  ailment  or  bodily  injury,
    46  including  insurance  providing  disability benefits pursuant to article
    47  nine of the workers' compensation law,  including  any  insurance  under
    48  such  article  for  family  care  benefits,  and/or  disability benefits
    49  resulting from injury, sickness or pregnancy of an employee all,  except
    50  as  specified in item (ii) [hereof] of this paragraph; and (ii) non-can-
    51  cellable disability  insurance,  meaning  insurance  against  disability
    52  resulting  from sickness, ailment or bodily injury (but excluding insur-
    53  ance solely against accidental injury) under any contract which does not

    54  give the insurer  the  option  to  cancel  or  otherwise  terminate  the
    55  contract at or after one year from its effective date or renewal date.
    56    § 15. This act shall take effect immediately.
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