Establishes the New York state family care and medical leave act; requires employers with 100 or more employees to provide at least 12 weeks of leave in a 12 month period to employees for family care or medical leave.
STATE OF NEW YORK
________________________________________________________________________
3639
2013-2014 Regular Sessions
IN ASSEMBLY
January 28, 2013
___________
Introduced by M. of A. BOYLAND, CASTRO, WEPRIN -- read once and referred
to the Committee on Labor
AN ACT to amend the labor law, in relation to establishing the New York
state family care and medical leave act
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new article 3-A to
2 read as follows:
3 ARTICLE 3-A
4 NEW YORK STATE FAMILY CARE AND MEDICAL LEAVE ACT
5 Section 110. Short title.
6 111. Definitions.
7 112. Family care and medical leave.
8 113. Exercise of rights protected; retaliation prohibited.
9 114. Enforcement.
10 115. Waiver by collective bargaining.
11 116. Minimum requirements.
12 117. Severability.
13 § 110. Short title. This article shall be known and may be cited as
14 the "New York state family care and medical leave act".
15 § 111. Definitions. For the purposes of this article:
16 1. "Child" means a biological, adopted or foster child, a step-child,
17 a legal ward or a child of a person who stands in parental relationship
18 to the child who is:
19 (a) less than eighteen years of age; or
20 (b) eighteen years of age or older and incapable of self-care because
21 of a mental or physical disability.
22 2. "Domestic partner" means a person at least eighteen years of age
23 who:
24 (a) is dependent upon the employee for support as shown by either
25 unilateral dependence or mutual interdependence, as evidenced by a nexus
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07492-01-3
A. 3639 2
1 of factors including, but not limited to, common ownership of real or
2 personal property, common householding, children in common, signs of
3 intent to marry, shared budgeting, and the length of the personal
4 relationship with the employee; or
5 (b) has registered as the domestic partner of the employee with any
6 registry of domestic partnerships maintained by the employer of either
7 party, the state, or any county, city, town, or village.
8 (c) For the purposes of this article, the definition of domestic part-
9 ner made by this subdivision shall supplement or supersede any incon-
10 sistent definition of such term by any other general, special, or local
11 law, ordinance, code, or charter so that no person qualifying as a
12 domestic partner, as defined in this subdivision, whether registered or
13 unregistered, shall, for the purposes of this article, be deemed not to
14 be a domestic partner.
15 (d) "Domestic partner" shall not include any person who is related by
16 blood to the employee in a manner that would bar marriage to the employ-
17 ee in New York state.
18 3. "Employer" means either of the following:
19 (a) any person who directly employs one hundred or more persons to
20 perform services for a wage or salary.
21 (b) the state, and any political or civil subdivision of the state and
22 cities.
23 4. "Employment in the same or a comparable position" means employment
24 in a position that has the same or similar duties and pay that can be
25 performed at the same or similar geographic location as the position
26 held prior to the leave.
27 5. "Family care and medical leave" means any of the following:
28 (a) Leave for reason of the birth of a child of the employee, the
29 placement of a child with an employee in connection with the adoption or
30 foster care of the child by the employee, or the serious health condi-
31 tion of a child of the employee.
32 (b) Leave to care for a family member who has a serious health condi-
33 tion.
34 (c) Leave because of an employee's own serious health condition that
35 makes the employee unable to perform the functions of the position of
36 that employee, except for leave taken for disability on account of preg-
37 nancy, childbirth, or related medical conditions.
38 6. "Family member" means a child, spouse, domestic partner, parent,
39 grandchild, grandparent, mother or father of spouse or domestic partner.
40 7. "FMLA" means the federal Family and Medical Leave Act of 1993 (P.L.
41 103-3).
42 8. "Health care provider" means a health care practitioner who is
43 licensed under relevant federal or state laws to provide medical, emer-
44 gency or health services and is treating an employee or a family member
45 for a serious health condition.
46 9. "Parent" means biological or adoptive parent, step-parent or person
47 who stood in parental relationship to an employee when the employee was:
48 (a) less than eighteen years of age; or
49 (b) eighteen years of age or older and incapable of self-care because
50 of a mental or physical disability.
51 10. Persons who stand in parental relationship to a child include
52 those with day-to-day responsibilities to care for and financially
53 support a child or, in the case of an employee, who had such responsi-
54 bility for the employee when the employee was a child. A biological or
55 legal relationship is not necessary.
A. 3639 3
1 11. "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 12. "Small business employer" means any person who directly employs
7 fewer than one hundred persons to perform services for a wage or salary.
8 § 112. Family care and medical leave. 1. (a) An employee with more
9 than twelve months of service with an employer and who has at least one
10 thousand two hundred fifty hours of service with the employer during the
11 previous twelve-month period shall be entitled to take up to a total of
12 twelve workweeks in any twelve-month period for family care and medical
13 leave. Family care and medical leave requested pursuant to this section
14 shall not be deemed to have been granted unless the employer provides
15 the employee, upon granting the leave request, a guarantee of employment
16 in the same or a comparable position upon the termination of the leave.
17 The commissioner shall adopt regulations specifying the elements of a
18 reasonable request.
19 (b) The provisions of paragraph (a) of this subdivision shall not
20 apply to an employee of a small business employer as such term is
21 defined in section one hundred eleven of this article.
22 2. (a) An employer shall not be required to pay an employee for any
23 leave taken pursuant to subdivision one of this section, except as
24 required by paragraph (b) of this subdivision.
25 (b) An employee taking a leave permitted by subdivision one of this
26 section may elect, or an employer may require the employee, to substi-
27 tute for leave allowed under subdivision one of this section any of the
28 employee's accrued vacation leave or other accrued time off during this
29 period or any other paid or unpaid time off negotiated with the employ-
30 er. If an employee takes a leave because of the employee's own serious
31 health condition, the employee may also elect, or the employer may also
32 require the employee, to substitute accrued sick leave during the period
33 of the leave. However, an employee shall not use sick leave during a
34 period of leave in connection with the birth, adoption, or foster care
35 of a child, or to care for a family member with a serious health condi-
36 tion, unless mutually agreed to by the employer and the employee.
37 3. (a) During any period that an eligible employee takes leave pursu-
38 ant to subdivision one of this section or takes leave that qualifies as
39 leave taken under the FMLA, the employer shall maintain and pay for
40 coverage under a "group health plan," as defined in section 5000(b) (1)
41 of the Internal Revenue Code of 1986, for the duration of the leave, not
42 to exceed twelve workweeks in a twelve-month period, commencing on the
43 date leave taken under the FMLA commences, at the level and under the
44 conditions coverage would have been provided if the employee had contin-
45 ued in employment continuously for the duration of the leave; provided,
46 however, that nothing included in this subdivision shall preclude an
47 employer from maintaining and paying for coverage under a "group health
48 plan" beyond twelve workweeks.
49 (b) An employer may recover the premium that the employer paid as
50 required by this subdivision for maintaining coverage for the employee
51 under the group health plan if:
52 (i) the employee fails to return from leave after the period of leave
53 to which the employee is entitled has expired; and
54 (ii) the employee's failure to return from leave is for a reason other
55 than the continuation, recurrence, or onset of a serious health condi-
A. 3639 4
1 tion that entitles the employee to leave under subdivision one of this
2 section or other circumstances beyond the control of the employee.
3 (c) (i) Any employee taking leave pursuant to subdivision one of this
4 section shall continue to be entitled to participate in employee health
5 plans for any period during which coverage is not provided by the
6 employer under paragraph (a) of this subdivision, employee benefit
7 plans, including life, short-term, or long-term disability or accident
8 insurance, pension and retirement plans, and supplemental unemployment
9 benefit plans to the same extent and under the same conditions as apply
10 to an unpaid leave taken for any purpose other than those described in
11 subdivision one of this section. In the absence of these conditions an
12 employee shall continue to be entitled to participate in these plans
13 and, in the case of health and welfare employee benefit plans, including
14 life, short-term, or long-term disability or accident insurance, or
15 other similar plans, the employer may, at his or her discretion, require
16 the employee to pay premiums, at the group rate, during the period of
17 leave not covered by any accrued vacation leave, or other accrued time
18 off, or any other paid or unpaid time off negotiated with the employer,
19 as a condition of continued coverage during the leave period. However,
20 the nonpayment of premiums by an employee shall not constitute a break
21 in service, for purposes of longevity, seniority under any collective
22 bargaining agreement, or any employee benefit plan.
23 (ii) For purposes of pension and retirement plans, an employer shall
24 not be required to make plan payments for an employee during the leave
25 period, and the leave period shall not be required to be counted for
26 purposes of time accrued under the plan. However, an employee covered by
27 a pension plan may continue to make contributions in accordance with the
28 terms of the plan during the period of the leave.
29 4. During a family care and medical leave period, the employee shall
30 retain employee status with the employer, and the leave shall not
31 constitute a break in service, for purposes of longevity, seniority
32 under any collective bargaining agreement, or any employee benefit plan.
33 An employee returning from leave shall return with no less seniority
34 than the employee had when the leave commenced, for purposes of layoff,
35 recall, promotion, job assignment, and seniority-related benefits such
36 as vacation.
37 5. (a) If the employee's need for a leave pursuant to this section is
38 foreseeable, the employee shall provide the employer with reasonable
39 advance notice of the need for the leave.
40 (b) If the employee's need for leave pursuant to this section is fore-
41 seeable due to a planned medical treatment or supervision, the employee
42 shall make a reasonable effort to schedule the treatment or supervision
43 to avoid disruption to the operations of the employer, subject to the
44 approval of the health care provider of the individual requiring the
45 treatment or supervision.
46 6. (a) An employer may require that an employee's request for leave to
47 care for a family member who has a serious health condition be supported
48 by a certification issued by the health care provider of the individual
49 requiring care. Such certification shall state:
50 (i) the date on which the serious health condition commenced;
51 (ii) the probable duration of the condition;
52 (iii) an estimate of the amount of time that the health care provider
53 believes the employee needs to care for the individual requiring the
54 care; and
A. 3639 5
1 (iv) a statement that the serious health condition warrants the
2 participation of a family member to provide care during a period of the
3 treatment or supervision of the individual requiring care.
4 (b) Upon expiration of the time estimated by the health care provider
5 in subparagraph (iii) of paragraph (a) of this subdivision, the employer
6 may require the employee to obtain recertification, in accordance with
7 the procedure provided in such paragraph (a), if additional leave is
8 required.
9 7. (a) An employer may require that an employee's request for leave
10 because of the employee's own serious health condition be supported by a
11 certification issued by his or her health care provider. Such certif-
12 ication shall state:
13 (i) the date on which the serious health condition commenced;
14 (ii) the probable duration of the condition; and
15 (iii) a statement that, due to the serious health condition, the
16 employee is unable to perform the function of his or her position.
17 (b) The employer may require that the employee obtain subsequent
18 recertification regarding the employee's serious health condition on a
19 reasonable basis, in accordance with the procedure provided in paragraph
20 (a) of this subdivision, if additional leave is required.
21 (c) (i) In any case in which the employer has reason to doubt the
22 validity of the certification provided pursuant to this section, the
23 employer may require, at the employer's expense, that the employee
24 obtain the opinion of a second health care provider, designated or
25 approved by the employer, concerning any information certified under
26 paragraph (a) of this subdivision.
27 (ii) The health care provider designated or approved under subpara-
28 graph (i) of this paragraph shall not be employed on a regular basis by
29 the employer.
30 (iii) In any case in which the second opinion described in subpara-
31 graph (i) of this paragraph differs from the opinion in the original
32 certification, the employer may require, at the employer's expense, that
33 the employee obtain the opinion of a third health care provider, desig-
34 nated or approved jointly by the employer and the employee, concerning
35 the information certified under paragraph (a) of this subdivision.
36 (iv) The opinion of the third health care provider concerning the
37 information certified under paragraph (a) of this subdivision shall be
38 considered to be final and shall be binding on the employer and the
39 employee.
40 (d) As a condition of an employee's return from leave taken because of
41 the employee's own serious health condition, the employer may have a
42 uniformly applied practice or policy that requires the employee to
43 obtain certification from his or her health care provider that the
44 employee is able to resume work. Nothing in this paragraph shall super-
45 sede a valid collective bargaining agreement that governs the return to
46 work of that employee.
47 8. In any case in which both parents entitled to leave under paragraph
48 (a) of subdivision one of this section are employed by the same employ-
49 er, the employer shall not be required to grant leave in connection with
50 the birth, adoption, or foster care of a child that would allow the
51 parents family care and medical leave totaling more than the amount
52 specified in such paragraph.
53 9. (a) Notwithstanding paragraph (a) of subdivision one of this
54 section, an employer may refuse to reinstate an employee returning from
55 leave to the same or a comparable position if:
A. 3639 6
1 (i) the employee is a salaried employee who is among the highest paid
2 ten percent of the employer's employees who are employed within seven-
3 ty-five miles of the worksite at which that employee is employed;
4 (ii) the refusal is necessary to prevent substantial and grievous
5 economic injury to the operations of the employer; and
6 (iii) the employer notifies the employee of the intent to refuse rein-
7 statement at the time the employer determines the refusal is necessary
8 under subparagraph (ii) of this paragraph.
9 (b) In any case in which the leave has already commenced, the employer
10 shall give the employee a reasonable opportunity to return to work
11 following the notice prescribed by subparagraph (iii) of paragraph (a)
12 of this subdivision.
13 10. Leave taken by an employee pursuant to this section shall run
14 concurrently with leave taken pursuant to the FMLA, except for any leave
15 taken under the FMLA for disability on account of pregnancy, childbirth,
16 or related medical conditions. The aggregate amount of leave taken under
17 this section or the FMLA, or both, except for leave taken for disability
18 on account of pregnancy, childbirth, or related medical conditions,
19 shall not exceed twelve workweeks in a twelve-month period.
20 11. Leave provided for pursuant to this section may be taken in one or
21 more periods. The twelve-month period during which twelve workweeks of
22 leave may be taken under this section shall run concurrently with the
23 twelve-month period under the FMLA, and shall commence the date leave
24 taken under the FMLA commences.
25 12. Nothing contained within this section shall be construed to
26 require any changes in existing collective bargaining agreements during
27 the life of the contract.
28 § 113. Exercise of rights protected; retaliation prohibited. 1. It
29 shall be unlawful for any employer or any other person to interfere
30 with, restrain, or deny the use of or the attempted use of any family
31 care and medical leave required by this article.
32 2. No employer or any other person shall discharge, threaten to
33 discharge, demote, suspend, or in any other manner discriminate or take
34 adverse action against any employee in retaliation for exercising any
35 right granted by this article. Such rights shall include, but not be
36 limited to, the use of family care and medical leave, the filing of a
37 complaint or informing any person about any violation of this article,
38 the cooperation with the department in the investigation of any alleged
39 violation of this article, and the informing of any person of his or her
40 rights pursuant to this article.
41 3. No employer shall consider or use family care and medical leave
42 taken pursuant to this article as an absence that may lead to or result
43 in the discipline of, the discharge of, the demotion of, the suspension
44 of or any other action against any employee.
45 4. The provisions of this section shall apply to any person who, in
46 good faith, alleges a violation of this article.
47 5. The taking of any adverse action against an employee within ninety
48 days of any person filing a complaint with the department or a court
49 alleging a violation of the provisions of this article, informing any
50 other person relating to an alleged violation of this article by an
51 employer, cooperating with the department or any other person in the
52 investigation or prosecution of any alleged violation of this article or
53 informing any person of the provisions of this article, shall establish
54 a rebuttable presumption that such adverse action was taken in retali-
55 ation for exercising the rights granted pursuant to this article.
A. 3639 7
1 § 114. Enforcement. 1. The department is charged with the duty to
2 enforce the provisions of this article. Furthermore, the commissioner is
3 authorized and directed to promulgate any rules and regulations neces-
4 sary to implement the provisions of this article.
5 2. For any violation of this article the department may order an
6 employer to grant reinstatement, back pay, the payment for any paid
7 family care and medical leave withheld and/or the payment of a penalty
8 to the affected employee. Furthermore, the department shall impose a
9 civil penalty, for any violation of this article, equal to triple the
10 monetary value of the paid family care and medical leave denied or two
11 hundred dollars, whichever shall be greater.
12 § 115. Waiver by collective bargaining. All or any portion of the
13 provisions of this article may be waived with regard to any employees
14 and employers who are subject to a bona fide collective bargaining
15 agreement to the extent that such provisions are expressly waived in
16 such agreement in clear and unambiguous terms.
17 § 116. Minimum requirements. The provisions of this article shall
18 constitute the minimum requirements of the provision of family care and
19 medical leave to employees. No provision of this article shall be deemed
20 to prohibit any employer from granting greater family care and medical
21 leave benefits than those required by this article.
22 § 117. Severability. If any clause, sentence, paragraph, section or
23 part of this article shall be adjudged by any court of competent juris-
24 diction to be invalid and after exhaustion of all further judicial
25 review, the judgement shall not affect, impair or invalidate the remain-
26 der thereof, but shall be confined in this operation to the clause,
27 sentence, paragraph, section or part of this act directly involved in
28 the controversy in which the judgement shall have been rendered.
29 § 2. This act shall take effect on the first of January next succeed-
30 ing the date on which it shall have become a law; provided, however,
31 that, effective immediately, any rules and regulations necessary to
32 implement the provisions of this act on its effective date are author-
33 ized and directed to be completed on or before such date.
