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A03870 Summary:

BILL NOA03870A
 
SAME ASSAME AS S03004-A
 
SPONSORNolan
 
COSPNSRTitus, Heastie, Cook, Weprin, Jaffee, Schimel, Colton, Rosenthal, Rozic, Fahy, Perry, DenDekker, Dinowitz, Gottfried, Markey, O'Donnell, Russell, Hooper, Bronson, Mayer, Robinson, Sepulveda, Rodriguez, Moya, Steck, Ortiz, Linares, Abinanti, Walker, Blake, Kavanagh, Lifton, Hunter, Bichotte, Santabarbara, Harris, Ramos
 
MLTSPNSRArroyo, Aubry, Barrett, Barron, Braunstein, Brennan, Cahill, Crespo, Davila, Englebright, Farrell, Galef, Glick, Joyner, Kim, Lavine, Lupardo, Miller, Otis, Peoples-Stokes, Pichardo, Pretlow, Quart, Seawright, Simon, Simotas, Solages, Thiele, Weinstein
 
Amd Work Comp L, generally; amd 1113, Ins L
 
Provides workers' compensation benefits for injury or sickness, pregnancy or family leave; applies to an employee and to family members taking family leave to care for an employee.
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A03870 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3870A
 
SPONSOR: Nolan (MS)
  TITLE OF BILL: An act to amend the workers' compensation law and the insurance law, in relation to providing benefits for injury or sickness, pregnancy or family leave   PURPOSE OR GENERAL IDEA OF BILL: To amend the workers' compensation law to provide benefits for paid family leave.   SUMMARY OF SPECIFIC PROVISIONS: Section 1: amends subdivision 2 of section 76 of the workers' compen- sation law regarding the state insurance fund and provision of family care benefits. Section 2: amends section 120 of the workers' compen- sation law regarding discrimination related to family care leave by employers. Section 3: amends section 201 workers' compensation law defining disability. Section 4: amends section 201 of the workers' compensation law defining a "day of disability." Section 5: amends section 201 of the workers' compensation law defining "family care", "child", "domestic partner", "serious health condition", "parent", "family member", "parental relationship", "grandchild", "health care provider", "family care cost", "grandparent" and "sibling." Section 6: adds section 203-a to the workers' compensation law regarding prohibi- tion of retaliatory action. Section 7: adds section 203-b to the work- ers' compensation law regarding job-protection for family care leave. Section 8: amends section 204 of the workers' compensation law regarding consecutive days of disability and weekly benefits. Section 9: amends section 205 of the workers' compensation law regarding benefit eligibil- ity. Section 10: adds a new section 205-a to the workers' compensation law regarding receipt of benefits and limitations. Section 11: amends subdivision 3 of section 209 of the workers' compensation law regarding employee contribution to the cost of disability benefits. Section 11-a: amends section 210 of the workers' compensation law regarding employer contributions. Section 12: adds two new subdivisions 7 and 8 to section 211 of the workers' compensation law regarding benefits from this law being in addition to the terms of any agreements that is collectively negotiated between an employee and employers. Section 13: adds a new section 211-a to the workers' compensation law regarding public employ- ees and family leave benefits. Section 14: subdivisions 1 and 2 of section 212 of the workers' compensation law are amended regarding employer obligation of provision of family care benefits. Section 15: amends subdivisions 1, 2, 3 and 4 of section 217 of the workers' compen- sation law regarding provision of proof of disability by employee. Section 16 amends section 221 of the workers' compensation law regarding denial of rights to paid family leave benefits. Section 16-a: amends section 226 of the workers' compensation law regarding insurance contracts and disability. Section 17: a mends subdivision 2 of section 229 of the workers' compensation law regarding employer obligation to provide information about family leave benefits. Section 18: amends the workers' compensation law adding a new section 239-a regarding outreach by the department of labor, a study by the department of insurance, and the creation of the family care advisory council. Section 19 amends paragraph 3 of subsection (a) of section 1113 of the insurance law defining "accident and health insurance." Section 20: is the effective date.   JUSTIFICATION: Although the Federal Family and Medical Leave Act guarantees 12 weeks of unpaid leave to many workers to care for a sick relative or bond with a new child, most people can't afford to take unpaid time from work. Paid family leave benefits would allow all workers to remain in the workforce and still receive some income while taking leave to care for their fami- ly. The need for such leave grows more acute by the day: people are living longer and requiring care in their later years while assisted living and nursing home options are growing fewer and more expensive. Unantic- ipated medical emergencies can drive families into desperate financial situations. Medical bills mount while people are out of work caring for their relatives despite the lack of income. Allowing people to receive some income during a brief leave form work can help prevent such finan- cial disaster. Further, allowing new parents time from work to bond with a newly born or adopted child is a great positive for the entire family in general and a child's development specifically.   PRIOR LEGISLATIVE HISTORY: A.1793/S.4742 passed Assembly 2013-14; A.6289/S.7547 of 2011-2012   FISCAL IMPLICATIONS: To be determined   EFFECTIVE DATE: This act shall take effect immediately; provided however, that (a) Sections two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen and nineteen of this act shall take effect on January 1, 2017. (b) Paragraph a of subdi- vision 3 of section 211-a of the workers' compensation law, as added by section thirteen of this act allowing public employees to opt in to family care benefits prior to July 1, 2017 and subdivision I of section 212 of the workers' compensation law as amended by section fourteen of this act allowing public employers to opt in to family care benefits prior to July 1, 2017, shall take effect immediately. (c) Effective immediately, the addition amendment and/or repeal of any rules or regu- lations necessary for the implementation of this act on its effective date are authorized and directed to be made and completed on or before such effective date.
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A03870 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3870--A
                                                                Cal. No. 163
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 27, 2015
                                       ___________
 
        Introduced  by  M.  of  A.  NOLAN, TITUS, HEASTIE, COOK, WEPRIN, JAFFEE,
          SCHIMEL, COLTON, ROSENTHAL, ROZIC, FAHY, PERRY,  DenDEKKER,  DINOWITZ,
          GOTTFRIED,  MARKEY, O'DONNELL, RUSSELL, HOOPER, BRONSON, MAYER, ROBIN-
          SON, SEPULVEDA, RODRIGUEZ,  MOYA,  STECK,  ORTIZ,  LINARES,  ABINANTI,
          WALKER, BLAKE, KAVANAGH, LIFTON, HUNTER -- Multi-Sponsored by -- M. of
          A.  ARROYO,  AUBRY, BARRETT, BARRON, BICHOTTE, BRENNAN, CAHILL, CLARK,
          CRESPO, DAVILA, ENGLEBRIGHT, FARRELL, GALEF, GLICK, JOYNER,  KAMINSKY,
          KIM, LAVINE, LUPARDO, MILLER, OTIS, PEOPLES-STOKES, PICHARDO, PRETLOW,
          QUART,  SEAWRIGHT,  SIMON, SIMOTAS, SOLAGES, THIELE, WEINSTEIN -- read
          once and referred to the Committee on Labor --  advanced  to  a  third
          reading,  amended  and  ordered  reprinted, retaining its place on the
          order of third reading
 
        AN ACT to amend the workers' compensation law and the insurance law,  in
          relation  to  providing  benefits for injury or sickness, pregnancy or
          family leave
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.   Subdivision 2 of section 76 of the workers' compensation
     2  law, as added by chapter 600 of the laws of 1949, is amended to read  as
     3  follows:
     4    2.  The purposes of the state insurance fund herein created are hereby
     5  enlarged to provide [for the] insurance [by the state insurance fund of]
     6  for the payment of the benefits required by section two hundred four  of
     7  this  chapter, including benefits for family care provided either in the
     8  same policy with or in a separate policy from  benefits  for  disability
     9  resulting  from  injury,  sickness  or  pregnancy of an employee, and as
    10  provided pursuant to section two hundred eleven-a of this  chapter.    A
    11  separate  fund  is hereby created within the state insurance fund, which
    12  shall be known as  the  "disability  benefits  fund",  and  which  shall
    13  consist  of  all premiums received and paid into said fund on account of
    14  such insurance, all securities acquired by and through the use of moneys
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03590-04-6

        A. 3870--A                          2
 
     1  belonging to said fund and of interest earned upon moneys  belonging  to
     2  said  fund and deposited or invested as herein provided. Said disability
     3  benefits fund shall be applicable to the payment of  benefits,  expenses
     4  and assessments on account of insurance written pursuant to article nine
     5  of this chapter.
     6    §  2.  The  section  heading  and  the first undesignated paragraph of
     7  section 120 of the workers' compensation law, as amended by  chapter  61
     8  of the laws of 1989, are amended to read as follows:
     9    Discrimination  against employees [who bring proceedings]. It shall be
    10  unlawful for any employer  or  his  or  her  duly  authorized  agent  to
    11  discharge  or in any other manner discriminate against an employee as to
    12  his or her employment because such employee has claimed or attempted  to
    13  claim  compensation from such employer, or claimed or attempted to claim
    14  any benefits provided under this chapter,  or  because  he  or  she  has
    15  testified  or is about to testify in a proceeding under this chapter and
    16  no other valid reason is shown to exist for such action by the employer.
    17    § 3. Subdivision 9 of section 201 of the workers' compensation law  is
    18  amended by adding two new paragraphs C and D to read as follows:
    19    C.  "Disability"  also includes family care, as defined in subdivision
    20  fifteen of this section.
    21    D. Unless otherwise set forth in this article, all provisions of  this
    22  article applicable to "disability" shall apply to (i) disability arising
    23  from injury or sickness; (ii) disability caused by or in connection with
    24  pregnancy;  and  (iii) family care.   Unless otherwise set forth in this
    25  article, all provisions  of  this  article  applicable  to  a  "disabled
    26  employee"  shall apply to employees in need of time off for the purposes
    27  of subparagraphs (i), (ii) and (iii) of this paragraph.
    28    § 4. Subdivision 14 of section 201 of the workers'  compensation  law,
    29  as added by chapter 600 of the laws of 1949 and as renumbered by chapter
    30  438 of the laws of 1964, is amended to read as follows:
    31    14.  "A  day  of  disability"  means any day on which the employee was
    32  prevented from performing work because of disability, including any  day
    33  which the employee uses for family care, and for which [he] the employee
    34  has not received his or her regular remuneration.
    35    § 5. Section 201 of the workers' compensation law is amended by adding
    36  twelve  new  subdivisions 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and
    37  26 to read as follows:
    38    15. "Family care" shall mean any leave taken by an employee from work:
    39    A. to participate in providing care, including physical or  psycholog-
    40  ical care, for a family member of the employee made necessary by a seri-
    41  ous health condition of the family member; or
    42    B.  to  bond  with the employee's child during the first twelve months
    43  after the child's birth, or the first twelve months after the  placement
    44  of the child for adoption or foster care with the employee.
    45    C.  because of any qualifying exigency as interpreted under the Family
    46  and Medical Leave Act,  29  U.S.C.  §  2612(a)(1)(E)  and  29  C.F.R.  §
    47  825.126(a)(1)-(8),  arising  out  of  the fact that the spouse, domestic
    48  partner, child, or parent of the employee is on active duty (or has been
    49  notified of an impending call or order to  active  duty)  in  the  armed
    50  forces of the United States.
    51    16. "Child" means a biological, adopted or foster child, a step-child,
    52  a  legal ward or a child of a person who stands in parental relationship
    53  to the child.
    54    17. "Domestic partner" has the meaning set forth in subdivision one of
    55  section four of this chapter.

        A. 3870--A                          3
 
     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  biological  or  adoptive  parent,  step-parent  or
     7  person who stood in parental relationship to an employee.
     8    20.  "Family  member" means a child, spouse, domestic partner, parent,
     9  grandchild, grandparent, sibling or parent of a spouse or domestic part-
    10  ner.
    11    21. "Parental relationship"  is  a  relationship  in  which  a  person
    12  assumes  the obligations incident to parenthood for a child and actually
    13  discharges those obligations,  or  a  relationship  in  which  a  person
    14  assumed  those obligations and discharged them before the child attained
    15  adulthood.  A biological or legal relationship is not necessary.
    16    22. "Grandchild" means the child of a child.
    17    23. "Health care provider" means a health  care  practitioner  who  is
    18  licensed  under relevant federal or state laws to provide medical, emer-
    19  gency or health  services  and  is  treating  an  employee's  disability
    20  resulting  from  injury, sickness or pregnancy, or a family member for a
    21  serious health condition.   For an  employee  or  a  family  member  who
    22  adheres  to the faith or teachings of any church or denomination and who
    23  in accordance with its creed, tenets or principles depends  for  healing
    24  upon  prayer  through spiritual means alone in the practice of religion,
    25  "health care provider" includes a practitioner duly  accredited  by  the
    26  church  or  denomination who is providing care to the employee or family
    27  member.
    28    24. "Family care cost" shall mean:
    29    A. prior to July first, two thousand eighteen, up to forty-five  cents
    30  per week; and
    31    B.  during every subsequent year commencing on July first such maximum
    32  amount as shall be set by regulation of the superintendent of  financial
    33  services following consultation with the family care advisory council by
    34  April  first  of the same year based on the superintendent's actuarially
    35  sound estimation of the cost per employee of providing family care bene-
    36  fits, but in no event more than one  hundred  fifteen  percent  of  such
    37  estimation  of  the  cost per employee of providing family care benefits
    38  through the state insurance fund.
    39    25. "Grandparent" means the parent of a parent.
    40    26. "Sibling" means a brother or a  sister,  whether  related  through
    41  half blood, whole blood or adoption or a step-sibling.
    42    §  6. The workers' compensation law is amended by adding a new section
    43  203-a to read as follows:
    44    § 203-a. Retaliatory action prohibited. 1.  The provisions of  section
    45  one  hundred twenty of this chapter and section two hundred forty-one of
    46  this article shall be applicable to family care leave as fully as if set
    47  forth in this section.
    48    2. Nothing in this section shall be deemed  to  diminish  the  rights,
    49  privileges,  or remedies of any employee under any collective bargaining
    50  agreement or employment contract.
    51    § 7. The workers' compensation law is amended by adding a new  section
    52  203-b to read as follows:
    53    § 203-b. Family care leave. Any eligible employee of a covered employ-
    54  er  who takes leave under this section shall be entitled, on return from
    55  such leave, to be restored by the employer to the position of employment
    56  held by the employee when the leave commenced, or to be  restored  to  a

        A. 3870--A                          4
 
     1  comparable  position  with comparable employment benefits, pay and other
     2  terms and conditions of employment. The taking of leave for the  purpose
     3  of  family  care  shall not result in the loss of any employment benefit
     4  accrued  prior to the date on which the leave commenced. Nothing in this
     5  section shall be construed to  entitle  any  restored  employee  to  the
     6  accrual  of  any  seniority  or employment benefits during any period of
     7  leave, or any right, benefit or position to  which  the  employee  would
     8  have been entitled had the employee not taken the leave.  A violation of
     9  this  section shall be a violation of section one hundred twenty of this
    10  chapter and all remedies  and  penalties  available  under  section  one
    11  hundred twenty of this chapter shall be available for violations of this
    12  section as fully as if set forth in this section.
    13    § 8. Subdivision 1 of section 204 of the workers' compensation law, as
    14  added  by chapter 600 of the laws of 1949, is amended and two new subdi-
    15  visions 3 and 4 are added to read as follows:
    16    1. Disability benefits shall be payable to an  eligible  employee  for
    17  disabilities  commencing  after  June thirtieth, nineteen hundred fifty,
    18  beginning with the eighth consecutive day of disability  and  thereafter
    19  during  the  continuance of disability, subject to the limitations as to
    20  maximum and minimum amounts and duration and other conditions and  limi-
    21  tations in this section and in sections two hundred five and two hundred
    22  six  of  this article.  When an employee is eligible to receive benefits
    23  for family care reasons immediately after  receiving  benefits  for  the
    24  employee's  own injury, sickness or pregnancy, benefits shall be payable
    25  to the employee beginning on the first  day  of  eligible  family  care.
    26  Successive periods of disability caused by the same or related injury or
    27  sickness  or  reason  for family care shall be deemed a single period of
    28  disability only if separated by less than three months.
    29    3. The weekly benefit which  the  disabled  employee  is  entitled  to
    30  receive  for  disability commencing on or after January first, two thou-
    31  sand seventeen shall be two-thirds  of  the  employee's  average  weekly
    32  wage,  but  in  no case shall such benefit exceed thirty-five percent of
    33  the statewide average weekly wage as determined by the state  department
    34  of labor pursuant to subdivision sixteen of section two of this chapter.
    35  The  weekly  benefit  which the disabled employee is entitled to receive
    36  for disability commencing on or after April first, two thousand eighteen
    37  shall be two-thirds of the employee's average weekly  wage,  but  in  no
    38  case  shall  such  benefit exceed forty percent of the statewide average
    39  weekly wage as determined by the state department of labor  pursuant  to
    40  subdivision  sixteen  of section two of this chapter. The weekly benefit
    41  which the disabled  employee  is  entitled  to  receive  for  disability
    42  commencing  on or after April first, two thousand nineteen shall be two-
    43  thirds of the employee's average weekly wage but in no case  shall  such
    44  benefit  exceed  forty-five percent of the statewide average weekly wage
    45  as determined by the state department of labor pursuant  to  subdivision
    46  sixteen  of  section  two  of this chapter. The weekly benefit which the
    47  disabled employee is entitled to receive for disability commencing on or
    48  after April first, two thousand twenty and subsequently  shall  be  two-
    49  thirds  of  the employee's average weekly wage but in no case shall such
    50  benefit exceed fifty percent of the statewide  average  weekly  wage  as
    51  determined  by  the  state  department  of labor pursuant to subdivision
    52  sixteen of section two of this chapter.  For disability commencing on or
    53  after January first, two thousand seventeen, the weekly  benefit  for  a
    54  disabled  employee  who  is  concurrently  eligible  for benefits in the
    55  employment of more than one covered employer shall, within  the  maximum
    56  herein  provided,  be  two-thirds of the total of the employee's average

        A. 3870--A                          5

     1  weekly wages received from all such  covered  employers,  and  shall  be
     2  allocated  in  the  proportion  of  their respective average weekly wage
     3  payments.
     4    4. Notwithstanding any contrary provisions in this article, an employ-
     5  ee shall be entitled to take leave for family care under this article on
     6  an intermittent or reduced leave schedule, except that an employee shall
     7  not  be entitled to intermittent or reduced leave to provide family care
     8  under paragraph A of subdivision fifteen of section two hundred  one  of
     9  this  article unless shown to be medically necessary. The employee shall
    10  make a reasonable effort to schedule intermittent or reduced leave so as
    11  not to unduly disrupt the operations of the employer. Leave taken on  an
    12  intermittent  or  reduced leave schedule shall not result in a reduction
    13  of the total amount of leave to which an employee is entitled under this
    14  article beyond the amount of leave actually taken.
    15    § 9. Subdivisions 1, 2, 3, 4, 7 and 8 of section 205 of  the  workers'
    16  compensation law, subdivision 1 as amended by chapter 651 of the laws of
    17  1958,  subdivision  2  as amended by chapter 270 of the laws of 1990 and
    18  subdivisions 3, 4, 7 and 8 as added by chapter 600 of the laws  of  1949
    19  and  as renumbered by chapter 352 of the laws of 1981, are amended and a
    20  new subdivision 9 is added to read as follows:
    21    1. (a) For disability resulting from injury, sickness or pregnancy  of
    22  an employee, for more than twenty-six weeks during a period of fifty-two
    23  consecutive calendar weeks or during any one period of disability; or
    24    (b)  For  family  care,  for more than twelve weeks during a period of
    25  fifty-two consecutive calendar weeks or during any one period of  family
    26  care;
    27    2. for any period of disability resulting from the injury, sickness or
    28  pregnancy  of an employee during which an employee is not under the care
    29  of a [duly licensed physician or with respect  to  disability  resulting
    30  from  a  condition  of  the foot which may lawfully be treated by a duly
    31  registered and licensed podiatrist of the state  of  New  York  or  with
    32  respect to a disability resulting from a condition which may lawfully be
    33  treated  by  a duly registered and licensed chiropractor of the state of
    34  New York or with respect to a  disability  resulting  from  a  condition
    35  which may lawfully be treated by a duly licensed dentist of the state of
    36  New  York  or  with  respect  to a disability resulting from a condition
    37  which may lawfully be treated by a duly registered and licensed psychol-
    38  ogist of the state of New York or with respect to a disability resulting
    39  from a condition which may lawfully be treated by a duly certified nurse
    40  midwife, for any period of such disability during which an  employee  is
    41  neither under the care of a physician nor a podiatrist, nor a chiroprac-
    42  tor,  nor  a dentist, nor a psychologist, nor a certified nurse midwife;
    43  and for any period of disability during which an employee who adheres to
    44  the faith or teachings of any church or denomination and who in  accord-
    45  ance with its creed, tenets or principles depends for healing upon pray-
    46  er  through  spiritual  means  alone in the practice of religion, is not
    47  under the care of a practitioner duly accredited by the church or denom-
    48  ination, and provided such employee shall submit to all  physical  exam-
    49  inations as required by this chapter.] health care provider;
    50    3. for any disability resulting from injury or sickness of an employee
    51  occasioned by the wilful intention of the employee to bring about injury
    52  to  or  the sickness of himself or another, or resulting from any injury
    53  or sickness sustained in the perpetration by the employee of an  illegal
    54  act;
    55    4.  for any day of disability during which the employee performed work
    56  for remuneration or profit; but not including any remuneration  received

        A. 3870--A                          6
 
     1  for caring for a foster or adopted child or other individual residing in
     2  the employee's place of residence;
     3    7.  for  any disability due to any act of war, declared or undeclared,
     4  if such act shall occur after June thirtieth,  nineteen  hundred  fifty,
     5  except  that  nothing  in  this  subdivision  shall bar an employee from
     6  receiving benefits under this article for care of a family member  disa-
     7  bled due to an act of war;
     8    8.  for any disability resulting from an injury, sickness or pregnancy
     9  of the employee commencing before the employee becomes eligible to bene-
    10  fits hereunder [or commencing prior  to  July  first,  nineteen  hundred
    11  fifty,  but  this  shall not preclude benefits for recurrence after July
    12  first, nineteen hundred fifty, of a disability commencing  prior  there-
    13  to.];
    14    9. for any day of absence from work resulting from injury, sickness or
    15  pregnancy  of  the  employee taken under section seventy-one or seventy-
    16  three of the civil service law.
    17    § 10. The workers' compensation law is amended by adding a new section
    18  205-a to read as follows:
    19    § 205-a. Relationship between disability benefits for family care  and
    20  for the employee's own injury, sickness or pregnancy.  1. The receipt of
    21  benefits  for disability resulting from injury, sickness or pregnancy of
    22  the employee, shall not count toward any time limitation under  subdivi-
    23  sion  one  of section two hundred five of this article on the receipt of
    24  benefits for family care, and the receipt of benefits  for  family  care
    25  shall  not  count  toward  any  time limitation under subdivision one of
    26  section two hundred five of this article on the receipt of benefits  for
    27  disability resulting from injury, sickness or pregnancy to the employee,
    28  except  that  an  employee  may  receive disability benefits on only one
    29  claim at any time.
    30    2. An employer may require that an individual who is entitled to leave
    31  under the provisions of the family and medical leave  act  of  1993,  29
    32  U.S.C.  Sec.  2601  et seq. shall take any family care benefits provided
    33  under this article concurrently with leave taken pursuant to the  family
    34  and medical leave act.
    35    §  11.  Subdivision 3 of section 209 of the workers' compensation law,
    36  as amended by chapter 415 of the laws of 1983, is  amended  to  read  as
    37  follows:
    38    3.  The  contribution  of each such employee to the cost of disability
    39  benefits provided by this article shall be one-half of one per centum of
    40  the employee's wages paid to him  on  and  after  July  first,  nineteen
    41  hundred fifty, but not in excess of sixty cents per week for the cost of
    42  disability  benefits  for  injury, sickness or pregnancy of the employee
    43  plus the family care cost, as  defined  in  subdivision  twenty-four  of
    44  section two hundred one of this article.
    45    §  11-a.  Section  210  of  the workers' compensation law, as added by
    46  chapter 600 of the laws of 1949, is amended to read as follows:
    47    § 210. Employer contributions. 1. Every covered employer shall, on and
    48  after January first, nineteen hundred  fifty,  contribute  the  cost  of
    49  providing  [disability]  benefits  for disability resulting from injury,
    50  sickness or pregnancy in excess of the contributions collected from  his
    51  employees, to the extent and in the manner provided in this article.
    52    2.  The  special  contribution of each covered employer to the accumu-
    53  lation of funds to provide benefits for disabled unemployed shall be  as
    54  provided  in  subdivision  one  of  section two hundred fourteen of this
    55  article.

        A. 3870--A                          7
 
     1    3. The contribution of every covered employer to the cost of providing
     2  [disability] benefits for disability resulting from injury, sickness  or
     3  pregnancy  after  June  thirtieth,  nineteen hundred fifty, shall be the
     4  excess of such cost over the amount of the contributions of his  employ-
     5  ees.
     6    4.  No  profit  shall  be  derived  by  any employer or association of
     7  employers or of employees from providing payment of disability  benefits
     8  under  this  article.  All funds representing contributions of employers
     9  and employees, and increments thereon, held by employers or associations
    10  of employers or of employees authorized or  permitted  to  pay  benefits
    11  under  the  provisions  of this article, and by trustees paying benefits
    12  under plans or  agreements  meeting  the  requirements  of  section  two
    13  hundred  eleven  of  this  article,  shall  be  trust funds and shall be
    14  expended only to provide for the payment of benefits  to  employees  and
    15  for  the  costs of administering this article and for the support of the
    16  fund established under section two hundred fourteen of this article.
    17    § 12. Section 211 of the  workers'  compensation  law  is  amended  by
    18  adding two new subdivisions 7 and 8 to read as follows:
    19    7. such family care benefits as are provided for in this article shall
    20  be  in addition to, and shall not amend, repeal or replace, the terms of
    21  any agreement that is collectively  negotiated between an  employer  and
    22  an  employee  organization,  including agreement or interest arbitration
    23  awards made pursuant to article fourteen of the civil service law.
    24    8. nothing in this article shall require an employer to use  the  same
    25  carrier  to provide benefits required by or permissible under this arti-
    26  cle for disability resulting from injury, sickness or pregnancy  of  the
    27  employee as it uses to provide benefits required by or permissible under
    28  this  article  for  family  care. An employer may use a different means,
    29  among those set forth in subdivisions one through five of this  section,
    30  to  provide  benefits  required by this article for disability resulting
    31  from injury, sickness or pregnancy of the employee, from the means  used
    32  to provide benefits required by this article for family care.
    33    § 13. The workers' compensation law is amended by adding a new section
    34  211-a to read as follows:
    35    §  211-a.  Public  employees; employee opt in. 1. For purposes of this
    36  section, "public employee" means any employee of the  state,  any  poli-
    37  tical  subdivision of the state, a public authority or any other govern-
    38  mental agency or instrumentality. "Public employer" means the state, any
    39  political subdivision of the state, a  public  authority  or  any  other
    40  governmental  agency or instrumentality thereof. "Employee organization"
    41  shall have the meaning set forth in section two hundred one of the civil
    42  service law.
    43    2. Public employers shall provide benefits for family care  to  public
    44  employees where an employee organization that represents those employees
    45  opts  in  to family care in accordance with the procedures and terms set
    46  forth in subdivision three of this section.
    47    3. An employee organization may opt in to the family care  benefit  on
    48  behalf of those employees it represents:
    49    a.  upon  notice  given  prior to April first, two thousand seventeen,
    50  which opt in shall become effective only on  July  first,  two  thousand
    51  seventeen;
    52    b.  at  any  time  upon ninety days notice for any employer who is not
    53  providing disability benefits for injury, sickness or  pregnancy  of  an
    54  employee  under  section  two  hundred twelve of this article, or who is
    55  self-insured for such benefits;

        A. 3870--A                          8
 
     1    c. for any employer who is providing disability benefits  for  injury,
     2  sickness or pregnancy of an employee under section two hundred twelve of
     3  this  article,  upon notice at least ninety days prior to the expiration
     4  of the employer's insurance policy for such benefits, which opt in shall
     5  be  effective  only for the time period covered by any subsequent policy
     6  or renewal; or
     7    d. at any time as is mutually agreed upon between the employee  organ-
     8  ization and any public employer.
     9    An  employee organization that has opted in to the family care benefit
    10  may opt out of it within the time periods, and effective upon  the  same
    11  dates, set forth in this subdivision.
    12    4. In the absence of any contrary statement in  a collectively negoti-
    13  ated agreement under article fourteen of the civil service law, a public
    14  employer  may  require public employees who opt in under this section to
    15  contribute up to the family care cost, as defined in  subdivision  twen-
    16  ty-four  of section two hundred one of this article, per week in accord-
    17  ance with the procedure set forth in section two hundred  nine  of  this
    18  article.
    19    § 14. Subdivisions 1 and 2 of section 212 of the workers' compensation
    20  law,  subdivision  1  as  amended by chapter 740 of the laws of 1960 and
    21  subdivision 2 as amended by chapter 120 of the laws of 1969, are amended
    22  to read as follows:
    23    1. Any employer not required  by  this  article  to  provide  for  the
    24  payment  of  disability  benefits  to  his employees, or to any class or
    25  classes thereof, may become a  covered  employer  or  bring  within  the
    26  provisions of this article such employees or class or classes thereof by
    27  voluntarily electing to provide for payment of [such] benefits for disa-
    28  bility  resulting  from  injury, sickness or pregnancy of an employee or
    29  for family care, or both, in one or  more  of  the  ways  set  forth  in
    30  section  two  hundred eleven of this article; but such election shall be
    31  subject to the approval of the [chairman] chair, and  if  the  employees
    32  are required to contribute to the cost of such benefits the assent with-
    33  in thirty days before such approval is granted, of more than one-half of
    34  such  employees shall be evidenced to the satisfaction of the [chairman]
    35  chair.  On approval by the [chairman] chair of such election to  provide
    36  benefits,  all  the provisions of this article shall become and continue
    37  applicable as if the employer were a covered employer as defined in this
    38  article. The obligation to continue as a covered employer  with  respect
    39  to  employees  for whom provision of benefits is not required under this
    40  article, may be discontinued by such employer on ninety days  notice  to
    41  the  [chairman]  chair  in  writing  and  to his employees, after he has
    42  provided for payment of benefits for not less than  one  year  and  with
    43  such  provision  for payment of obligations incurred on and prior to the
    44  termination date as the [chairman] chair may approve.  Any election by a
    45  public employer to provide family  care  benefits  made  prior  to  July
    46  first, two thousand seventeen shall be effective on that date.
    47    2.  Notwithstanding  the  definition of "employer" and "employment" in
    48  section two hundred one of this article, the state, a public  authority,
    49  a  municipal  corporation or a fire district or other political subdivi-
    50  sion may become a covered employer under this article by complying  with
    51  the  provisions  of  subdivision one of this section and may discontinue
    52  such status only as provided in [that] such subdivision.
    53    § 15. 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 1990

        A. 3870--A                          9
 
     1  and  subdivision  4  as  added  by  chapter 600 of the laws of 1949, are
     2  amended to read as follows:
     3    1.  Written  notice  and proof of disability shall be furnished to the
     4  employer by or on behalf of the employee claiming benefits  or,  in  the
     5  case  of  a claimant under section two hundred seven of this article, to
     6  the chair, within thirty days after commencement of the period of  disa-
     7  bility. Additional proof shall be furnished thereafter from time to time
     8  as  the employer or carrier or chair may require but not more often than
     9  once each week. Such proof shall include:
    10    (a) 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;
    20    (b)  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    (c) in the case of benefits for care of a family member with a serious
    26  health condition:
    27    (i)  a statement by the family member's health care provider, contain-
    28  ing facts and opinions as to such health condition  in  compliance  with
    29  regulations of the chair; and
    30    (ii) a statement subscribed by the employee and affirmed by him or her
    31  as  true  under  penalties  of  perjury, or other equivalent documentary
    32  proof, that the employee is a primary care giver for the  family  member
    33  during the time of disability;
    34    (d)  in the case of benefits due to a military exigency, proof of call
    35  to active duty and certification that  the  leave  is  for  one  of  the
    36  exigencies  authorized  for  leave  under  regulation  of the Family and
    37  Medical Leave Act, 29 CFR Sec. 825.309(6).
    38    Failure to furnish notice or proof within the time and in  the  manner
    39  above  provided  shall not invalidate the claim but no benefits shall be
    40  required to be paid for any period more than two weeks prior to the date
    41  on which the required proof is furnished unless it shall be shown to the
    42  satisfaction of the chair  not  to  have  been  reasonably  possible  to
    43  furnish such notice or proof and that such notice or proof was furnished
    44  as  soon  as possible; provided, however, that no benefits shall be paid
    45  unless the required proof of disability is furnished  within  twenty-six
    46  weeks  after commencement of the period of disability.  No limitation of
    47  time provided in this section shall run as against  any  person  who  is
    48  mentally  incompetent,  or physically incapable of providing such notice
    49  as a result of a serious medical condition, or a minor so long  as  such
    50  person has no guardian of the person and/or property.
    51    2.  An  employee claiming benefits for the employee's injury, sickness
    52  or pregnancy, or the family member of such employee in  any  case  where
    53  the  employee  claims  family  care  benefits for providing care to that
    54  family member shall, as requested by the  employer  or  carrier,  submit
    55  himself  or  herself  at  intervals,  but not more than once a week, for
    56  examination by a [physician or podiatrist or chiropractor or dentist  or

        A. 3870--A                         10

     1  psychologist  or  certified nurse midwife] relevant health care provider
     2  designated by the employer or carrier. All such  examinations  shall  be
     3  without  cost  to  the  employee or family member and shall be held at a
     4  reasonable time and place.
     5    3. The chair may direct the claimant who seeks disability benefits for
     6  his  or  her  injury,  sickness  or  pregnancy, or the claimant's family
     7  member where the claimant seeks disability benefits for family leave  to
     8  provide care to that family member to submit to examination by a [physi-
     9  cian  or podiatrist or chiropractor or dentist or psychologist] relevant
    10  health care provider designated by him or her in any case in  which  the
    11  claim  to  disability  benefits is contested and in claims arising under
    12  section two hundred seven of this article, and in  other  cases  as  the
    13  chair or board may require.
    14    4.  Refusal  of  the  claimant  or family member without good cause to
    15  submit to any such examination shall disqualify [him] the claimant  from
    16  all  benefits  hereunder  for  the  period of such refusal, except as to
    17  benefits already paid.
    18    § 16.  Section 221 of the workers'  compensation  law,  as  separately
    19  amended  by chapters 425 and 500 of the laws of 1985, is amended to read
    20  as follows:
    21    § 221. Determination of  contested  claims  for  disability  benefits.
    22  Within  twenty-six  weeks  of  written notice of rejection of claim, the
    23  employee may file with the [chairman] chair a notice  that  his  or  her
    24  claim  for disability benefits has not been paid, and the employee shall
    25  submit proof of disability and of his or her employment, wages and other
    26  facts reasonably necessary for determination of the employee's right  to
    27  such  benefits.    Failure to file such notice within the time provided,
    28  may be excused by the [chairman] chair if it can be shown to the  satis-
    29  faction  of the [chairman] chair not to have been reasonably possible to
    30  furnish such notice and that such notice was furnished as soon as possi-
    31  ble.  On demand of the [chairman] chair the employer  or  carrier  shall
    32  forthwith deliver to the [chairman] chair proof of disability, including
    33  if relevant the original or a true copy of the [attending physician's or
    34  attending podiatrist's or accredited practitioner's] health care provid-
    35  er's  statement,  wage  and  employment data and all other papers in the
    36  possession of the employer or carrier with  respect  to  such  claim  or
    37  complaint.
    38    The  board shall have full power and authority to determine all issues
    39  in relation to every such claim  for  disability  benefits  required  or
    40  provided  under  this article, and shall file its decision in the office
    41  of the [chairman] chair.  Upon such filing, the [chairman]  chair  shall
    42  send  to  the  parties  a copy of the decision. Either party may present
    43  evidence and be represented by counsel at any  hearing  on  such  claim.
    44  The  decision  of  the  board shall be final as to all questions of fact
    45  and, except as provided in section twenty-three of this chapter,  as  to
    46  all questions of law. Every decision of the board shall be complied with
    47  in  accordance  with its terms within ten days thereafter except in case
    48  of appeal, and any payments due under such decision  shall  draw  simple
    49  interest  from thirty days after the making thereof at the rate provided
    50  in section five thousand four of the civil practice law and rules.
    51    § 16-a. Subdivisions 2 and 3 of section 226 of  the  workers'  compen-
    52  sation  law, as added by chapter 600 of the laws of 1949, are amended to
    53  read as follows:
    54    2. Every such policy shall contain a provision that,  as  between  the
    55  employee  and  the  insurance carrier, the notice to or knowledge of the
    56  occurrence of the [injury or sickness] disability on  the  part  of  the

        A. 3870--A                         11

     1  employer  shall be deemed notice or knowledge as the case may be, on the
     2  part of the insurance carrier; that jurisdiction of the employer  shall,
     3  for the purpose of this chapter, be jurisdiction of the insurance carri-
     4  er  and  that  the insurance carrier shall in all things be bound by and
     5  subject to the orders, findings or decisions rendered in connection with
     6  the payment of benefits under the provisions of this article.
     7    3. Every such policy shall contain a provision to the effect that  the
     8  insolvency or bankruptcy of the employer shall not relieve the insurance
     9  carrier  from  the  payment  of  benefits for disability [suffered by an
    10  employee] that occurs during the life of such policy.
    11    § 17. Subdivisions 1 and 2 of section 229 of the workers' compensation
    12  law, subdivision 1 as amended and subdivision 2 as added by chapter  271
    13  of the laws of 1985, are amended to read as follows:
    14    1.  Each  covered  employer  shall  post and maintain in a conspicuous
    15  place or places in and about the employer's place or places of  business
    16  typewritten  or  printed  notices  in  form prescribed by the [chairman]
    17  chair, stating that the employer has provided for the payment  of  disa-
    18  bility  benefits  as  required by this article. The [chairman] chair may
    19  require any covered employer to furnish a written statement at any  time
    20  showing  the carrier insuring the payment of benefits under this article
    21  or the manner in which such  employer  has  complied  with  section  two
    22  hundred  eleven  or  any  other provision of this article. Failure for a
    23  period of ten days to furnish such written  statement  shall  constitute
    24  presumptive  evidence  that  such  employer  has  neglected or failed in
    25  respect of any of the matters so required. Each covered  employer  shall
    26  provide  each  employee with a typewritten, printed or electronic notice
    27  in a form prescribed  by  the  chair,  stating  that  the  employer  has
    28  provided  for  the  payment  of  disability benefits as required by this
    29  article within thirty days of the effective date of the chapter  of  the
    30  laws  of  two  thousand  sixteen  which  amended  this subdivision. Each
    31  covered employer shall provide such notice to all new  employees  within
    32  thirty days of their first day of work.
    33    2.  Whenever  an  employee  of  a covered employer who is eligible for
    34  benefits under section two hundred four of this article shall be  absent
    35  from  work due to a disability as defined in subdivision nine of section
    36  two hundred one of this article for more than  seven  consecutive  days,
    37  the  employer shall provide the employee with a written statement of the
    38  employee's rights under this article in a form prescribed by the [chair-
    39  man] chair. The statement shall be provided to the employee within  five
    40  business  days  after  the employee's seventh consecutive day of absence
    41  due to disability or within five business days after the employer  knows
    42  or  should know that the employee's absence is due to disability, which-
    43  ever is later.
    44    § 18. The workers' compensation law is amended by adding a new section
    45  239-a to read as follows:
    46    § 239-a. Family care outreach study and monitoring.  1. The department
    47  shall develop and implement a public education campaign to inform  work-
    48  ers  and  employers regarding the availability of family care under this
    49  chapter. The department's public outreach campaign may  include  locally
    50  tailored  public education strategies targeted to new parents and family
    51  caregivers who may be eligible for family care under  this  chapter.  As
    52  part  of  the  public education program, public officials may maintain a
    53  supply of informational leaflets in public buildings, including but  not
    54  limited  to  local employment services offices of the department, insti-
    55  tutions and facilities under the supervision or control of  the  depart-
    56  ment  of  health, hospitals, union halls, community centers, schools and

        A. 3870--A                         12
 
     1  local agencies providing services to employers  and  employees  to  help
     2  ensure that such persons are informed of the availability of family care
     3  under  this chapter. The department shall make public education informa-
     4  tion  available  in English, Spanish, Chinese, Russian, Italian, Korean,
     5  Haitian Creole, and  any  other  languages  deemed  appropriate  by  the
     6  department.
     7    2. The department of financial services shall study, and report to the
     8  governor and both houses of the legislature by April first, two thousand
     9  seventeen,  on the feasibility and impact of community rating disability
    10  insurance or any aspect thereof.
    11    3. There shall be created the  family  care  advisory  council,  which
    12  shall  consist  of  fifteen  members  to be appointed by the governor as
    13  follows: two on recommendation by the New York state American federation
    14  of labor-congress of industrial organizations,  one  of  whom  shall  be
    15  representative  of public employee organizations certified under article
    16  fourteen of the civil service law, participating in the paid family care
    17  plan, one of whom  is  representative  of  unions  representing  workers
    18  employed in the private sector; two who are representatives of organiza-
    19  tions  that represent either covered business or public employers in New
    20  York state participating in the paid family leave  plan;  two  on  nomi-
    21  nation of the speaker of the assembly; one on nomination by the minority
    22  leader of the assembly; two on nomination by the temporary  president of
    23  the  senate; one on nomination by the minority leader of the senate; and
    24  the superintendent of financial services, commissioner  of  labor    and
    25  chair  of the workers' compensation board, who shall serve as members ex
    26  officio. The commissioner of labor shall serve as chair of the  council.
    27  The  superintendent  of  financial  services  and  chair of the workers'
    28  compensation board   shall consult regularly with  the  council  on  the
    29  implementation  of  the family care benefit. The department, the depart-
    30  ment of financial services and the  workers'  compensation  board  shall
    31  provide  all necessary personnel and logistical support as may be neces-
    32  sary to complete the duties of the advisory council. The council or  any
    33  of  its  members  may issue such recommendations or reports as they deem
    34  warranted on the family care benefit, including  on  the  scope  of  the
    35  benefit,  problems  with  the benefit; funding of the benefit  including
    36  pass-through costs; possible statutory amendments and regulatory  chang-
    37  es;  usage  rates;  outreach; and community rating. Any such recommenda-
    38  tions or reports shall be provided to the  governor,  superintendent  of
    39  financial  services, speaker of the assembly, temporary president of the
    40  senate and minority leaders of the senate and assembly.  Each member  of
    41  the commission shall serve a term of three years. An appointment to fill
    42  a  vacancy shall be made for the remainder of the affected term. Members
    43  shall receive no compensation.
    44    § 19. Paragraph 3 of subsection (a) of section 1113 of  the  insurance
    45  law is amended to read as follows:
    46    (3) "Accident and health insurance," means (i) insurance against death
    47  or  personal  injury  by  accident  or by any specified kind or kinds of
    48  accident and insurance  against  sickness,  ailment  or  bodily  injury,
    49  including  insurance  providing  disability benefits pursuant to article
    50  nine of the workers' compensation law,  including  any  insurance  under
    51  that  article  for  family  care benefits, disability benefits resulting
    52  from injury, sickness or pregnancy of an employee,  or  all,  except  as
    53  specified in item (ii) [hereof] of this paragraph; and (ii) non-cancell-
    54  able  disability insurance, meaning insurance against disability result-
    55  ing from sickness, ailment or bodily  injury  (but  excluding  insurance
    56  solely against accidental injury) under any contract which does not give

        A. 3870--A                         13
 
     1  the  insurer the option to cancel or otherwise terminate the contract at
     2  or after one year from its effective date or renewal date.
     3    § 20. This act shall take effect immediately; provided, however, that:
     4    (a)  Sections  two,  three,  four, five, six, seven, eight, nine, ten,
     5  eleven, twelve, thirteen,  fourteen,  fifteen,  sixteen,  seventeen  and
     6  nineteen of this act shall take effect January 1, 2017.
     7    (b)  Paragraph  a  of  subdivision  3 of section 211-a of the workers'
     8  compensation law, as added by section  thirteen  of  this  act  allowing
     9  public employees to opt in to family care benefits prior to July 1, 2017
    10  and  subdivision  1  of  section 212 of the workers' compensation law as
    11  amended by section fourteen of this act allowing public employers to opt
    12  in to family care benefits prior to July  1,  2017,  shall  take  effect
    13  immediately.
    14    (c)  Effective  immediately,  the addition, amendment and/or repeal of
    15  any rules or regulations necessary for the implementation of this act on
    16  its effective date are authorized and directed to be made and  completed
    17  on or before such effective date.
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