A03639 Summary:

BILL NOA03639
 
SAME ASNo same as
 
SPONSORBoyland (MS)
 
COSPNSRWeprin
 
MLTSPNSR
 
Add Art 3-A SS110 - 117, Lab L
 
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.
Go to top    

A03639 Actions:

BILL NOA03639
 
01/28/2013referred to labor
01/08/2014referred to labor
03/10/2014enacting clause stricken
Go to top

A03639 Floor Votes:

There are no votes for this bill in this legislative session.
Go to top

A03639 Text:



 
                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.
Go to top