NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6865
SPONSOR: Cruz
 
TITLE OF BILL:
An act to amend the workers' compensation law, in relation to paid fami-
ly leave and bereavement for fetal death, miscarriage, stillbirth, and
an infant being medically not viable to survive
 
PURPOSE OR GENERAL IDEA OF BILL:
To provide bereavement benefits to parents whose child dies from fetal
death, miscarriage, still birth, or an infant that is determined to be
medically not viable to survive.
 
SUMMARY OF PROVISIONS:
Section 1 defines "family leave" to be leave taken for bereavement due
to fetal death, miscarriage, still birth, or births that are not
"medically viable".
Section 2 thru 5 details procedures to claim bereavement bene-
fits,including presenting the following documentation to the employer
within 30 days: fetal death certificate; certificate of stillbirth; or,
death certificate.
Section 6 provides that the bill shall take effect immediately and apply
to all policies or contracts issued, renewed, modified, altered or
amended on or after January 1, 2021.
 
JUSTIFICATION:
The loss of an infant in utero due to miscarriage or stillbirth is
devastating and unexpected. Parents should be entitled to use bereave-
ment benefits for both physical and emotional healing. New York State
currently recognizes these losses and issues fetal death certificates
and still birth certificates through the Dept of Health. Thus, the mech-
anisms to allow bereavement benefits are there. If NYS cares about the
emotional well-being of employees, these benefits must be provided.
Furthermore,countless studies have shown that employees who take care of
their emotional well-being are more productive and dedicated workers.
 
PRIOR LEGISLATIVE HISTORY:
None.
 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined.
 
EFFECTIVE DATE:
This act shall take effect immediately and apply to all policies or
contracts issued, renewed, modified, altered or amended on or after
January 1, 2021.
STATE OF NEW YORK
________________________________________________________________________
6865
2021-2022 Regular Sessions
IN ASSEMBLY
April 13, 2021
___________
Introduced by M. of A. CRUZ -- read once and referred to the Committee
on Labor
AN ACT to amend the workers' compensation law, in relation to paid fami-
ly leave and bereavement for fetal death, miscarriage, stillbirth, and
an infant being medically not viable to survive
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 15 of section 201 of the workers' compensation
2 law, as added by section 2 of part SS of chapter 54 of the laws of 2016,
3 is amended to read as follows:
4 15. "Family leave" shall mean any leave taken by an employee from
5 work: (a) to participate in providing care, including physical or
6 psychological care, for a family member of the employee made necessary
7 by a serious health condition of the family member; or (b) to bond with
8 the employee's child during the first twelve months after the child's
9 birth, or the first twelve months after the placement of the child for
10 adoption or foster care with the employee; or (c) because of any quali-
11 fying exigency as interpreted under the family and medical leave act, 29
12 U.S.C.S § 2612(a)(1)(e) and 29 C.F.R. S.825.126(a)(1)-(8), arising out
13 of the fact that the spouse, domestic partner, child, or parent of the
14 employee is on active duty (or has been notified of an impending call or
15 order to active duty) in the armed forces of the United States; or (d)
16 leave taken for the purposes of bereavement due to the fetal death,
17 miscarriage or stillbirth of an infant born to the employee or the
18 employee's spouse, or due to the employee's infant being declared
19 medically not viable to survive birth by a physician licensed under
20 article one hundred thirty-one of the education law.
21 § 2. Paragraph (b) of subdivision 2 of section 205 of the workers'
22 compensation law, as added by section 6 of part SS of chapter 54 of the
23 laws of 2016, is amended to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10683-01-1
A. 6865 2
1 (b) For any period of family leave wherein the notice and medical
2 certification, fetal death certificate, certificate of miscarriage,
3 certificate of stillbirth or death certificate, as prescribed by the
4 chair has not been filed. At the discretion of the chair or chair's
5 designee pursuant to section two hundred twenty-one of this article, the
6 family member who is the recipient of care may be required to submit to
7 a physical examination by a qualified health care provider unless such
8 family member is unable to be examined due to death, fetal death,
9 miscarriage or stillbirth. Such examination shall be paid for by the
10 carrier; and
11 § 3. Subdivision 5 of section 205 of the workers' compensation law, as
12 added by section 6 of part SS of chapter 54 of the laws of 2016, is
13 amended to read as follows:
14 5. In any case in which the necessity for family leave is foreseeable
15 based on an expected birth or placement, the employee shall provide the
16 employer with not less than thirty days notice before the date the leave
17 is to begin, of the employee's intention to take family leave under this
18 article, except that if the date of the birth or placement requires
19 leave to begin in less than thirty days, the employee shall provide such
20 notice as is practicable. In any case in which the necessity for family
21 leave is foreseeable based on planned medical treatment, the employee
22 shall provide the employer with not less than thirty days notice, before
23 the date the leave is to begin, of the employees intention to take fami-
24 ly leave under this article, except that if the date of the treatment
25 requires leave to begin in less than thirty days, the employee shall
26 provide such notice as is practicable. In the case of family leave due
27 to bereavement, notice shall be provided as soon as practicable.
28 § 4. Subdivision 1 of section 217 of the workers' compensation law, as
29 amended by section 16 of part SS of chapter 54 of the laws of 2016, is
30 amended to read as follows:
31 1. Written notice and proof of disability or proof of need for family
32 leave shall be furnished to the employer by or on behalf of the employee
33 claiming benefits or, in the case of a claimant under section two
34 hundred seven of this article, to the chair, within thirty days after
35 commencement of the period of disability. Additional proof shall be
36 furnished thereafter from time to time as the employer or carrier or
37 chair may require but not more often than once each week. Such proof
38 shall include a statement of disability by the employee's attending
39 physician or attending podiatrist or attending chiropractor or attending
40 dentist or attending psychologist or attending certified nurse midwife
41 or family leave care recipient's health care provider, or in the case of
42 an employee who adheres to the faith or teachings of any church or
43 denomination, and who in accordance with its creed, tenets or principles
44 depends for healing upon prayer through spiritual means alone in the
45 practice of religion, by an accredited practitioner, containing facts
46 and opinions as to such disability in compliance with regulations of the
47 chair. In the event that the claimant is eligible for family leave due
48 to bereavement, a fetal death certificate, certificate of miscarriage,
49 certificate of stillbirth, or death certificate shall serve as proof of
50 need of leave. Failure to furnish notice or proof within the time and in
51 the manner above provided shall not invalidate the claim but no benefits
52 shall be required to be paid for any period more than two weeks prior to
53 the date on which the required proof is furnished unless it shall be
54 shown to the satisfaction of the chair not to have been reasonably
55 possible to furnish such notice or proof and that such notice or proof
56 was furnished as soon as possible; provided, however, that no benefits
A. 6865 3
1 shall be paid unless the required proof of disability is furnished with-
2 in the period of actual disability or family leave that does not exceed
3 the statutory maximum period permitted under section two hundred four of
4 this article. No limitation of time provided in this section shall run
5 as against any disabled employee who is mentally incompetent, or phys-
6 ically incapable of providing such notice as a result of a serious
7 medical condition, or a minor so long as such person has no guardian of
8 the person and/or property.
9 § 5. Subdivisions 3 and 4 of section 217 of the workers' compensation
10 law, as amended by section 16 of part SS of chapter 54 of the laws of
11 2016, are amended to read as follows:
12 3. The chair or chair's designee, pursuant to section two hundred
13 twenty-one of this article, may direct the claimant or family leave care
14 recipient to submit to examination by a health care provider designated
15 by him or her in any case in which the claim to disability or family
16 leave benefits is contested and in claims arising under section two
17 hundred seven of this article, and in other cases as the chair or board
18 may require. In the event that the family member or the family leave
19 care recipient is unable to be examined due to death, fetal death,
20 miscarriage or still birth, this section shall not apply.
21 4. Refusal of the claimant or family leave care recipient without good
22 cause to submit to any such examination shall disqualify the claimant or
23 employee from all benefits hereunder for the period of such refusal,
24 except as to benefits already paid. In the event that the family member
25 or family leave care recipient is unable to be examined due to death,
26 fetal death, miscarriage or stillbirth, this section shall not apply.
27 § 6. This act shall take effect immediately and shall apply to all
28 policies or contracts issued, renewed, modified, altered or amended on
29 or after January 1, 2022.