Bill Text: NY A06289 | 2011-2012 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 32-0)
Status: (Introduced - Dead) 2012-01-04 - referred to labor [A06289 Detail]
Download: New_York-2011-A06289-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 6289 2011-2012 Regular Sessions I N A S S E M B L Y March 11, 2011 ___________ Introduced by M. of A. NOLAN, COOK, WEPRIN, JAFFEE, BARRON, GIBSON, JACOBS, CASTRO, WEISENBERG, BENEDETTO, SIMOTAS, N. RIVERA, STEVENSON, LANCMAN, CAHILL, SPANO, SCHIMEL, TITUS, MOYA -- Multi-Sponsored by -- M. of A. ABBATE, BOYLAND, BRENNAN, GLICK, GOTTFRIED, HEASTIE, McENENY, PHEFFER, SCARBOROUGH, WEINSTEIN -- read once and referred to the Committee on Labor 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 15 belonging to said fund and of interest earned upon moneys belonging to 16 said fund and deposited or invested as herein provided. Said disability 17 benefits fund shall be applicable to the payment of benefits, expenses 18 and assessments on account of insurance written pursuant to article nine 19 of this chapter. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09329-02-1 A. 6289 2 1 S 2. The section heading and the first undesignated paragraph of 2 section 120 of the workers' compensation law, as amended by chapter 61 3 of the laws of 1989, are amended to read as follows: 4 Discrimination against employees [who bring proceedings]. It shall be 5 unlawful for any employer or his or her duly authorized agent to 6 discharge or in any other manner discriminate against an employee as to 7 his or her employment because such employee has claimed or attempted to 8 claim compensation from such employer, OR CLAIMED OR ATTEMPTED TO CLAIM 9 ANY BENEFITS PROVIDED UNDER THIS CHAPTER, or because he or she has 10 testified or is about to testify in a proceeding under this chapter and 11 no other valid reason is shown to exist for such action by the employer. 12 S 3. Subdivision 9 of section 201 of the workers' compensation law is 13 amended by adding two new paragraphs C and D to read as follows: 14 C. "DISABILITY" ALSO INCLUDES FAMILY CARE, AS DEFINED IN SUBDIVISION 15 FIFTEEN OF THIS SECTION. 16 D. UNLESS OTHERWISE SET FORTH IN THIS ARTICLE, ALL PROVISIONS OF THIS 17 ARTICLE APPLICABLE TO "DISABILITY" SHALL APPLY TO (I) DISABILITY ARISING 18 FROM INJURY OR SICKNESS; (II) DISABILITY CAUSED BY OR IN CONNECTION WITH 19 PREGNANCY; AND (III) DISABILITY REQUIRING FAMILY CARE. 20 S 4. Subdivision 14 of section 201 of the workers' compensation law, 21 as added by chapter 600 of the laws of 1949 and as renumbered by chapter 22 438 of the laws of 1964, is amended to read as follows: 23 14. "A day of disability" means any day on which the employee was 24 prevented from performing work because of disability, INCLUDING ANY DAY 25 WHICH THE EMPLOYEE USES FOR FAMILY CARE, and for which [he] THE EMPLOYEE 26 has not received his OR HER regular remuneration. 27 S 5. Section 201 of the workers' compensation law is amended by adding 28 ten new subdivisions 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 to read 29 as follows: 30 15. "FAMILY CARE" SHALL MEAN ANY LEAVE TAKEN BY AN EMPLOYEE FROM WORK: 31 A. TO PARTICIPATE IN PROVIDING CARE, INCLUDING PHYSICAL OR PSYCHOLOG- 32 ICAL CARE, FOR A FAMILY MEMBER OF THE EMPLOYEE MADE NECESSARY BY A SERI- 33 OUS HEALTH CONDITION OF THE FAMILY MEMBER; OR 34 B. TO BOND WITH THE EMPLOYEE'S CHILD DURING THE FIRST TWELVE MONTHS 35 AFTER THE CHILD'S BIRTH, OR THE FIRST TWELVE MONTHS AFTER THE PLACEMENT 36 OF THE CHILD FOR ADOPTION OR FOSTER CARE WITH THE EMPLOYEE. 37 16. "CHILD" MEANS A BIOLOGICAL, ADOPTED OR FOSTER CHILD, A STEP-CHILD, 38 A LEGAL WARD OR A CHILD OF A PERSON WHO STANDS IN PARENTAL RELATIONSHIP 39 TO THE CHILD WHO IS: 40 A. LESS THAN EIGHTEEN YEARS OF AGE; OR 41 B. EIGHTEEN YEARS OF AGE OR OLDER AND INCAPABLE OF SELF-CARE BECAUSE 42 OF A MENTAL OR PHYSICAL DISABILITY. 43 17. "DOMESTIC PARTNER" HAS THE MEANING SET FORTH IN SECTION FOUR OF 44 THIS CHAPTER. 45 18. "SERIOUS HEALTH CONDITION" MEANS AN ILLNESS, INJURY, IMPAIRMENT, 46 OR PHYSICAL OR MENTAL CONDITION THAT: 47 A. REQUIRES INPATIENT CARE IN A HOSPITAL, HOSPICE OR RESIDENTIAL 48 HEALTH CARE FACILITY; OR 49 B. REQUIRES CONTINUING TREATMENT BY A HEALTH CARE PROVIDER. 50 19. "PARENT" MEANS BIOLOGICAL OR ADOPTIVE PARENT, STEP-PARENT OR 51 PERSON WHO STOOD IN PARENTAL RELATIONSHIP TO AN EMPLOYEE WHEN THE 52 EMPLOYEE WAS: 53 A. LESS THAN EIGHTEEN YEARS OF AGE; OR 54 B. EIGHTEEN YEARS OF AGE OR OLDER AND INCAPABLE OF SELF-CARE BECAUSE 55 OF A MENTAL OR PHYSICAL DISABILITY. A. 6289 3 1 20. "FAMILY MEMBER" MEANS A CHILD, SPOUSE, DOMESTIC PARTNER, PARENT, 2 GRANDCHILD, GRANDPARENT, MOTHER OR FATHER OF SPOUSE OR DOMESTIC PARTNER. 3 21. PERSONS WHO STAND IN PARENTAL RELATIONSHIP TO A CHILD INCLUDE 4 THOSE WITH DAY-TO-DAY RESPONSIBILITIES TO CARE FOR AND FINANCIALLY 5 SUPPORT A CHILD OR, IN THE CASE OF AN EMPLOYEE, WHO HAD SUCH RESPONSI- 6 BILITY FOR THE EMPLOYEE WHEN THE EMPLOYEE WAS A CHILD. A BIOLOGICAL OR 7 LEGAL RELATIONSHIP IS NOT NECESSARY. 8 22. "GRANDCHILD" MEANS THE CHILD OF A CHILD. 9 23. "HEALTH CARE PROVIDER" MEANS A HEALTH CARE PRACTITIONER WHO IS 10 LICENSED UNDER RELEVANT FEDERAL OR STATE LAWS TO PROVIDE MEDICAL, EMER- 11 GENCY OR HEALTH SERVICES AND IS TREATING AN EMPLOYEE OR A FAMILY MEMBER 12 FOR A SERIOUS HEALTH CONDITION. 13 24. "FAMILY CARE COST" SHALL MEAN: 14 A. PRIOR TO JULY FIRST, TWO THOUSAND THIRTEEN, FORTY-FIVE CENTS PER 15 WEEK; AND 16 B. DURING EVERY SUBSEQUENT YEAR COMMENCING ON JULY FIRST SUCH AMOUNT 17 AS SHALL BE SET BY REGULATION OF THE SUPERINTENDENT OF INSURANCE FOLLOW- 18 ING CONSULTATION WITH THE FAMILY CARE ADVISORY COUNCIL BY APRIL FIRST OF 19 THE SAME YEAR BASED ON THE SUPERINTENDENT'S ACTUARIALLY SOUND ESTIMATION 20 OF THE COST PER EMPLOYEE OF PROVIDING FAMILY CARE BENEFITS, BUT IN NO 21 EVENT MORE THAN ONE HUNDRED FIFTEEN PERCENT OF SUCH ESTIMATION OF THE 22 COST PER EMPLOYEE OF PROVIDING FAMILY CARE BENEFITS THROUGH THE STATE 23 INSURANCE FUND. 24 S 6. The workers' compensation law is amended by adding a new section 25 203-a to read as follows: 26 S 203-A. RETALIATORY ACTION PROHIBITED. 1. THE PROVISIONS OF SECTION 27 ONE HUNDRED TWENTY OF THIS CHAPTER AND SECTION TWO HUNDRED FORTY-ONE OF 28 THIS ARTICLE SHALL BE APPLICABLE TO FAMILY CARE LEAVE AS FULLY AS IF SET 29 FORTH IN THIS SECTION. 30 2. NOTHING IN THIS SECTION SHALL BE DEEMED TO DIMINISH THE RIGHTS, 31 PRIVILEGES, OR REMEDIES OF ANY EMPLOYEE UNDER ANY COLLECTIVE BARGAINING 32 AGREEMENT OR EMPLOYMENT CONTRACT; EXCEPT THAT THE INSTITUTION OF AN 33 ACTION IN ACCORDANCE WITH THIS SECTION SHALL BE DEEMED A WAIVER OF THE 34 RIGHTS AND REMEDIES AVAILABLE UNDER ANY OTHER CONTRACT OR COLLECTIVE 35 BARGAINING AGREEMENT. 36 S 7. The workers' compensation law is amended by adding a new section 37 203-b to read as follows: 38 S 203-B. FAMILY CARE LEAVE. ANY ELIGIBLE EMPLOYEE OF A COVERED EMPLOY- 39 ER WHO, AFTER JANUARY FIRST, TWO THOUSAND TWELVE, HAS IN EMPLOYMENT 40 TWENTY-FIVE OR MORE EMPLOYEES ON EACH OF AT LEAST THIRTY DAYS IN ANY 41 CALENDAR YEAR WHO TAKES LEAVE UNDER THIS SECTION SHALL BE ENTITLED, ON 42 RETURN FROM SUCH LEAVE, TO BE RESTORED BY THE EMPLOYER TO THE POSITION 43 OF EMPLOYMENT HELD BY THE EMPLOYEE WHEN THE LEAVE COMMENCED, OR TO BE 44 RESTORED TO A COMPARABLE POSITION WITH COMPARABLE EMPLOYMENT BENEFITS, 45 PAY AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT. THE TAKING OF LEAVE 46 FOR THE PURPOSE OF FAMILY CARE SHALL NOT RESULT IN THE LOSS OF ANY 47 EMPLOYMENT BENEFIT ACCRUED PRIOR TO THE DATE ON WHICH THE LEAVE 48 COMMENCED. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO ENTITLE ANY 49 RESTORED EMPLOYEE TO THE ACCRUAL OF ANY SENIORITY OR EMPLOYMENT BENEFITS 50 DURING ANY PERIOD OF LEAVE, OR ANY RIGHT, BENEFIT OR POSITION TO WHICH 51 THE EMPLOYEE WOULD HAVE BEEN ENTITLED HAD THE EMPLOYEE NOT TAKEN THE 52 LEAVE. A VIOLATION OF THIS SECTION SHALL BE A VIOLATION OF SECTION ONE 53 HUNDRED TWENTY OF THIS CHAPTER AND ALL REMEDIES AND PENALTIES AVAILABLE 54 UNDER SECTION ONE HUNDRED TWENTY OF THIS CHAPTER SHALL BE AVAILABLE FOR 55 VIOLATIONS OF THIS SECTION AS FULLY AS IF SET FORTH IN THIS SECTION. A. 6289 4 1 S 8. Subdivision 1 of section 204 of the workers' compensation law, as 2 added by chapter 600 of the laws of 1949, is amended and a new subdivi- 3 sion 3 is added to read as follows: 4 1. Disability benefits shall be payable to an eligible employee for 5 disabilities commencing after June thirtieth, nineteen hundred fifty, 6 beginning with the eighth consecutive day of disability and thereafter 7 during the continuance of disability, subject to the limitations as to 8 maximum and minimum amounts and duration and other conditions and limi- 9 tations in this section and in sections two hundred five and two hundred 10 six OF THIS ARTICLE. Successive periods of disability caused by the 11 same or related injury or sickness OR REASON FOR FAMILY CARE shall be 12 deemed a single period of disability only if separated by less than 13 three months. 14 3. THE WEEKLY BENEFIT WHICH THE DISABLED EMPLOYEE IS ENTITLED TO 15 RECEIVE FOR DISABILITY COMMENCING ON OR AFTER JANUARY FIRST, TWO THOU- 16 SAND TWELVE SHALL BE FIFTY PERCENT OF THE EMPLOYEE'S AVERAGE WEEKLY 17 WAGE, BUT IN NO CASE SHALL SUCH BENEFIT EXCEED THIRTY-FIVE PERCENT OF 18 THE STATEWIDE AVERAGE WEEKLY WAGE AS DETERMINED BY THE STATE DEPARTMENT 19 OF LABOR PURSUANT TO SUBDIVISION SIXTEEN OF SECTION TWO OF THIS CHAPTER. 20 THE WEEKLY BENEFIT WHICH THE DISABLED EMPLOYEE IS ENTITLED TO RECEIVE 21 FOR DISABILITY COMMENCING ON OR AFTER APRIL FIRST, TWO THOUSAND THIRTEEN 22 SHALL BE FIFTY PERCENT OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE, BUT IN NO 23 CASE SHALL SUCH BENEFIT EXCEED FORTY PERCENT OF THE STATEWIDE AVERAGE 24 WEEKLY WAGE AS DETERMINED BY THE STATE DEPARTMENT OF LABOR PURSUANT TO 25 SUBDIVISION SIXTEEN OF SECTION TWO OF THIS CHAPTER. THE WEEKLY BENEFIT 26 WHICH THE DISABLED EMPLOYEE IS ENTITLED TO RECEIVE FOR DISABILITY 27 COMMENCING ON OR AFTER APRIL FIRST, TWO THOUSAND FOURTEEN SHALL BE FIFTY 28 PERCENT OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE BUT IN NO CASE SHALL SUCH 29 BENEFIT EXCEED FORTY-FIVE PERCENT OF THE STATEWIDE AVERAGE WEEKLY WAGE 30 AS DETERMINED BY THE STATE DEPARTMENT OF LABOR PURSUANT TO SUBDIVISION 31 SIXTEEN OF SECTION TWO OF THIS CHAPTER. THE WEEKLY BENEFIT WHICH THE 32 DISABLED EMPLOYEE IS ENTITLED TO RECEIVE FOR DISABILITY COMMENCING ON OR 33 AFTER APRIL FIRST, TWO THOUSAND FIFTEEN AND SUBSEQUENTLY SHALL BE FIFTY 34 PERCENT OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE BUT IN NO CASE SHALL SUCH 35 BENEFIT EXCEED FIFTY PERCENT OF THE STATEWIDE AVERAGE WEEKLY WAGE AS 36 DETERMINED BY THE STATE DEPARTMENT OF LABOR PURSUANT TO SUBDIVISION 37 SIXTEEN OF SECTION TWO OF THIS CHAPTER. 38 S 9. Subdivisions 1, 2, 3, 4, 7 and 8 of section 205 of the workers' 39 compensation law, subdivision 1 as amended by chapter 651 of the laws of 40 1958, subdivision 2 as amended by chapter 270 of the laws of 1990 and 41 subdivisions 3, 4, 7 and 8 as added by chapter 600 of the laws of 1949 42 and as renumbered by chapter 352 of the laws of 1981, are amended and a 43 new subdivision 9 is added to read as follows: 44 1. (A) For DISABILITY RESULTING FROM INJURY, SICKNESS OR PREGNANCY OF 45 AN EMPLOYEE, FOR more than twenty-six weeks during a period of fifty-two 46 consecutive calendar weeks or during any one period of disability; OR 47 (B) FOR FAMILY CARE, FOR MORE THAN TWELVE WEEKS DURING A PERIOD OF 48 FIFTY-TWO CONSECUTIVE CALENDAR WEEKS OR DURING ANY ONE PERIOD OF FAMILY 49 CARE; 50 2. for any period of disability RESULTING FROM THE INJURY, SICKNESS OR 51 PREGNANCY OF AN EMPLOYEE during which an employee is not under the care 52 of a duly licensed physician or with respect to disability resulting 53 from a condition of the foot which may lawfully be treated by a duly 54 registered and licensed podiatrist of the state of New York or with 55 respect to a disability resulting from a condition which may lawfully be 56 treated by a duly registered and licensed chiropractor of the state of A. 6289 5 1 New York or with respect to a disability resulting from a condition 2 which may lawfully be treated by a duly licensed dentist of the state of 3 New York or with respect to a disability resulting from a condition 4 which may lawfully be treated by a duly registered and licensed psychol- 5 ogist of the state of New York or with respect to a disability resulting 6 from a condition which may lawfully be treated by a duly certified nurse 7 midwife, for any period of such disability during which an employee is 8 neither under the care of a physician nor a podiatrist, nor a chiroprac- 9 tor, nor a dentist, nor a psychologist, nor a certified nurse midwife; 10 and for any period of disability during which an employee who adheres to 11 the faith or teachings of any church or denomination and who in accord- 12 ance with its creed, tenets or principles depends for healing upon pray- 13 er through spiritual means alone in the practice of religion, is not 14 under the care of a practitioner duly accredited by the church or denom- 15 ination, and provided such employee shall submit to all physical exam- 16 inations as required by this chapter[.]; 17 3. for any disability RESULTING FROM INJURY OR SICKNESS OF AN EMPLOYEE 18 occasioned by the wilful intention of the employee to bring about injury 19 to or the sickness of himself or another, or resulting from any injury 20 or sickness sustained in the perpetration by the employee of an illegal 21 act; 22 4. for any day of disability during which the employee performed work 23 for remuneration or profit; BUT NOT INCLUDING ANY REMUNERATION RECEIVED 24 FOR CARING FOR A FOSTER OR ADOPTED CHILD OR OTHER INDIVIDUAL RESIDING IN 25 THE EMPLOYEE'S PLACE OF RESIDENCE; 26 7. for any disability due to any act of war, declared or undeclared, 27 if such act shall occur after June thirtieth, nineteen hundred fifty, 28 EXCEPT THAT NOTHING IN THIS SUBDIVISION SHALL BAR AN EMPLOYEE FROM 29 RECEIVING BENEFITS UNDER THIS ARTICLE FOR CARE OF A FAMILY MEMBER DISA- 30 BLED DUE TO AN ACT OF WAR; 31 8. for any disability RESULTING FROM AN INJURY, SICKNESS OR PREGNANCY 32 OF THE EMPLOYEE commencing before the employee becomes eligible to bene- 33 fits hereunder [or commencing prior to July first, nineteen hundred 34 fifty, but this shall not preclude benefits for recurrence after July 35 first, nineteen hundred fifty, of a disability commencing prior there- 36 to.]; 37 9. FOR ANY DAY OF ABSENCE FROM WORK REQUIRED PURSUANT TO ANY DISCIPLI- 38 NARY PROCESS; OR, IN REGARD TO FAMILY CARE BENEFITS, ANY DAY OF ABSENCE 39 FROM WORK RESULTING FROM INJURY, SICKNESS OR PREGNANCY OF THE EMPLOYEE, 40 INCLUDING ANY LEAVE TAKEN UNDER SECTION SEVENTY-ONE OR SEVENTY-THREE OF 41 THE CIVIL SERVICE LAW. 42 S 10. The workers' compensation law is amended by adding a new section 43 205-a to read as follows: 44 S 205-A. RELATIONSHIP BETWEEN DISABILITY BENEFITS FOR FAMILY CARE AND 45 FOR THE EMPLOYEE'S OWN INJURY, SICKNESS OR PREGNANCY. THE RECEIPT OF 46 BENEFITS FOR DISABILITY RESULTING FROM INJURY, SICKNESS OR PREGNANCY OF 47 THE EMPLOYEE, SHALL NOT COUNT TOWARD ANY TIME LIMITATION UNDER SUBDIVI- 48 SION ONE OF SECTION TWO HUNDRED FIVE OF THIS ARTICLE ON THE RECEIPT OF 49 BENEFITS FOR FAMILY CARE, AND THE RECEIPT OF BENEFITS FOR FAMILY CARE 50 SHALL NOT COUNT TOWARD ANY TIME LIMITATION UNDER SUBDIVISION ONE OF 51 SECTION TWO HUNDRED FIVE OF THIS ARTICLE ON THE RECEIPT OF BENEFITS FOR 52 DISABILITY RESULTING FROM INJURY, SICKNESS OR PREGNANCY TO THE EMPLOYEE, 53 EXCEPT THAT AN EMPLOYEE MAY RECEIVE DISABILITY BENEFITS ON ONLY ONE 54 CLAIM AT ANY TIME. A. 6289 6 1 S 11. Subdivision 3 of section 209 of the workers' compensation law, 2 as amended by chapter 415 of the laws of 1983, is amended to read as 3 follows: 4 3. The contribution of each such employee to the cost of disability 5 benefits provided by this article shall be one-half of one per centum of 6 the employee's wages paid to him on and after July first, nineteen 7 hundred fifty, but not in excess of sixty cents per week FOR THE COST OF 8 DISABILITY BENEFITS FOR INJURY, SICKNESS OR PREGNANCY OF THE EMPLOYEE 9 PLUS THE FAMILY CARE COST, AS DEFINED IN SUBDIVISION TWENTY-FOUR OF 10 SECTION TWO HUNDRED ONE OF THIS ARTICLE. 11 S 12. Section 211 of the workers' compensation law is amended by 12 adding two new subdivisions 7 and 8 to read as follows: 13 7. SUCH FAMILY CARE BENEFITS AS ARE PROVIDED FOR IN THIS ARTICLE SHALL 14 BE IN ADDITION TO, AND SHALL NOT AMEND, REPEAL OR REPLACE, THE TERMS OF 15 ANY AGREEMENT THAT IS COLLECTIVELY NEGOTIATED BETWEEN AN EMPLOYER AND 16 AN EMPLOYEE ORGANIZATION, INCLUDING AGREEMENT OR INTEREST ARBITRATION 17 AWARDS MADE PURSUANT TO ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW. 18 8. NOTHING IN THIS ARTICLE SHALL REQUIRE AN EMPLOYER TO USE THE SAME 19 CARRIER TO PROVIDE BENEFITS REQUIRED BY OR PERMISSIBLE UNDER THIS ARTI- 20 CLE FOR DISABILITY RESULTING FROM INJURY, SICKNESS OR PREGNANCY OF THE 21 EMPLOYEE AS IT USES TO PROVIDE BENEFITS REQUIRED BY OR PERMISSIBLE UNDER 22 THIS ARTICLE FOR FAMILY CARE. AN EMPLOYER MAY USE A DIFFERENT MEANS, 23 AMONG THOSE SET FORTH IN SUBDIVISIONS ONE THROUGH FIVE OF THIS SECTION, 24 TO PROVIDE BENEFITS REQUIRED BY THIS ARTICLE FOR DISABILITY RESULTING 25 FROM INJURY, SICKNESS OR PREGNANCY OF THE EMPLOYEE, FROM THE MEANS USED 26 TO PROVIDE BENEFITS REQUIRED BY THIS ARTICLE FOR FAMILY CARE. 27 S 13. The workers' compensation law is amended by adding a new section 28 211-a to read as follows: 29 S 211-A. PUBLIC EMPLOYEES; EMPLOYEE OPT IN. 1. FOR PURPOSES OF THIS 30 SECTION, "PUBLIC EMPLOYEE" MEANS ANY EMPLOYEE OF THE STATE, ANY POLI- 31 TICAL SUBDIVISION OF THE STATE, A PUBLIC AUTHORITY OR ANY OTHER GOVERN- 32 MENTAL AGENCY OR INSTRUMENTALITY. "PUBLIC EMPLOYER" MEANS THE STATE, ANY 33 POLITICAL SUBDIVISION OF THE STATE, A PUBLIC AUTHORITY OR ANY OTHER 34 GOVERNMENTAL AGENCY OR INSTRUMENTALITY THEREOF. "EMPLOYEE ORGANIZATION" 35 SHALL HAVE THE MEANING SET FORTH IN SECTION TWO HUNDRED ONE OF THE CIVIL 36 SERVICE LAW. 37 2. PUBLIC EMPLOYERS SHALL PROVIDE BENEFITS FOR FAMILY CARE TO PUBLIC 38 EMPLOYEES WHERE AN EMPLOYEE ORGANIZATION THAT REPRESENTS THOSE EMPLOYEES 39 OPTS IN TO FAMILY CARE IN ACCORDANCE WITH THE PROCEDURES AND TERMS SET 40 FORTH IN SUBDIVISION THREE OF THIS SECTION. 41 3. AN EMPLOYEE ORGANIZATION MAY OPT IN TO THE FAMILY CARE BENEFIT ON 42 BEHALF OF THOSE EMPLOYEES IT REPRESENTS: 43 A. UPON NOTICE GIVEN PRIOR TO APRIL FIRST, TWO THOUSAND TWELVE, WHICH 44 OPT IN SHALL BECOME EFFECTIVE ONLY ON JULY FIRST, TWO THOUSAND TWELVE; 45 B. AT ANY TIME UPON NINETY DAYS NOTICE FOR ANY EMPLOYER WHO IS NOT 46 PROVIDING DISABILITY BENEFITS FOR INJURY, SICKNESS OR PREGNANCY OF AN 47 EMPLOYEE UNDER SECTION TWO HUNDRED TWELVE OF THIS ARTICLE, OR WHO IS 48 SELF-INSURED FOR SUCH BENEFITS; 49 C. FOR ANY EMPLOYER WHO IS PROVIDING DISABILITY BENEFITS FOR INJURY, 50 SICKNESS OR PREGNANCY OF AN EMPLOYEE UNDER SECTION TWO HUNDRED TWELVE OF 51 THIS ARTICLE, UPON NOTICE AT LEAST NINETY DAYS PRIOR TO THE EXPIRATION 52 OF THE EMPLOYER'S INSURANCE POLICY FOR SUCH BENEFITS, WHICH OPT IN SHALL 53 BE EFFECTIVE ONLY FOR THE TIME PERIOD COVERED BY ANY SUBSEQUENT POLICY 54 OR RENEWAL; OR 55 D. AT ANY TIME AS IS MUTUALLY AGREED UPON BETWEEN THE EMPLOYEE ORGAN- 56 IZATION AND ANY PUBLIC EMPLOYER. A. 6289 7 1 AN EMPLOYEE ORGANIZATION THAT HAS OPTED IN TO THE FAMILY CARE BENEFIT 2 MAY OPT OUT OF IT WITHIN THE TIME PERIODS, AND EFFECTIVE UPON THE SAME 3 DATES, SET FORTH IN THIS PARAGRAPH. 4 4. IN THE ABSENCE OF ANY CONTRARY STATEMENT IN A COLLECTIVELY NEGOTI- 5 ATED AGREEMENT UNDER ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW, A PUBLIC 6 EMPLOYER MAY REQUIRE PUBLIC EMPLOYEES WHO OPT IN UNDER THIS SECTION TO 7 CONTRIBUTE UP TO THE FAMILY CARE COST, AS DEFINED IN SUBDIVISION TWEN- 8 TY-FOUR OF SECTION TWO HUNDRED ONE OF THIS ARTICLE, PER WEEK IN ACCORD- 9 ANCE WITH THE PROCEDURE SET FORTH IN SECTION TWO HUNDRED NINE OF THIS 10 ARTICLE. 11 S 14. Subdivisions 1 and 2 of section 212 of the workers' compensation 12 law, subdivision 1 as amended by chapter 740 of the laws of 1960 and 13 subdivision 2 as amended by chapter 120 of the laws of 1969, are amended 14 to read as follows: 15 1. Any employer not required by this article to provide for the 16 payment of disability benefits to his employees, or to any class or 17 classes thereof, may become a covered employer or bring within the 18 provisions of this article such employees or class or classes thereof by 19 voluntarily electing to provide for payment of [such] benefits FOR DISA- 20 BILITY RESULTING FROM INJURY, SICKNESS OR PREGNANCY OF AN EMPLOYEE OR 21 FOR FAMILY CARE, OR BOTH, in one or more of the ways set forth in 22 section two hundred eleven OF THIS ARTICLE; but such election shall be 23 subject to the approval of the [chairman] CHAIR, and if the employees 24 are required to contribute to the cost of such benefits the assent with- 25 in thirty days before such approval is granted, of more than one-half of 26 such employees shall be evidenced to the satisfaction of the [chairman] 27 CHAIR. On approval by the [chairman] CHAIR of such election to provide 28 benefits, all the provisions of this article shall become and continue 29 applicable as if the employer were a covered employer as defined in this 30 article. The obligation to continue as a covered employer with respect 31 to employees for whom provision of benefits is not required under this 32 article, may be discontinued by such employer on ninety days notice to 33 the [chairman] CHAIR in writing and to his employees, after he has 34 provided for payment of benefits for not less than one year and with 35 such provision for payment of obligations incurred on and prior to the 36 termination date as the chairman may approve. ANY ELECTION BY A PUBLIC 37 EMPLOYER TO PROVIDE FAMILY CARE BENEFITS MADE PRIOR TO JULY FIRST, TWO 38 THOUSAND TWELVE SHALL BE EFFECTIVE ON THAT DATE. 39 2. Notwithstanding the definition of "employer" and "employment" in 40 section two hundred one of this article, THE STATE, a public authority, 41 a municipal corporation or a fire district or other political subdivi- 42 sion may become a covered employer under this article by complying with 43 the provisions of subdivision one of this section and may discontinue 44 such status only as provided in [that] SUCH subdivision. 45 S 15. Subdivisions 1, 2, 3 and 4 of section 217 of the workers' 46 compensation law, subdivision 1 as amended by chapter 167 of the laws of 47 1999, subdivisions 2 and 3 as amended by chapter 270 of the laws of 1990 48 and subdivision 4 as added by chapter 600 of the laws of 1949, are 49 amended to read as follows: 50 1. Written notice and proof of disability shall be furnished to the 51 employer by or on behalf of the employee claiming benefits or, in the 52 case of a claimant under section two hundred seven of this article, to 53 the chair, within thirty days after commencement of the period of disa- 54 bility. Additional proof shall be furnished thereafter from time to time 55 as the employer or carrier or chair may require but not more often than 56 once each week. Such proof shall include: A. 6289 8 1 (A) IN THE CASE OF DISABILITY RESULTING FROM INJURY, SICKNESS OR PREG- 2 NANCY OF THE EMPLOYEE, a statement of disability by the employee's 3 attending [physician or attending podiatrist or attending chiropractor 4 or attending dentist or attending psychologist or attending certified 5 nurse midwife, or in the case of an employee who adheres to the faith or 6 teachings of any church or denomination, and who in accordance with its 7 creed, tenets or principles depends for healing upon prayer through 8 spiritual means alone in the practice of religion, by an accredited 9 practitioner, containing facts and opinions as to such disability in 10 compliance with regulations of the chair.] HEALTH CARE PROVIDER; 11 (B) IN THE CASE OF FAMILY CARE FOR BONDING WITH A NEW CHILD, A BIRTH 12 CERTIFICATE, CERTIFICATE OF ADOPTION, OR OTHER COMPETENT EVIDENCE SHOW- 13 ING THAT THE EMPLOYEE IS THE PARENT OF A CHILD WITHIN TWELVE MONTHS OF 14 THAT CHILD'S BIRTH OR PLACEMENT FOR ADOPTION OR FOSTER CARE WITH THE 15 EMPLOYEE; 16 (C) IN THE CASE OF BENEFITS FOR CARE OF A FAMILY MEMBER WITH A SERIOUS 17 HEALTH CONDITION: 18 (I) A STATEMENT BY THE FAMILY MEMBER'S HEALTH CARE PROVIDER, CONTAIN- 19 ING FACTS AND OPINIONS AS TO SUCH HEALTH CONDITION IN COMPLIANCE WITH 20 REGULATIONS OF THE CHAIR; AND 21 (II) A STATEMENT SUBSCRIBED BY THE EMPLOYEE AND AFFIRMED BY HIM OR HER 22 AS TRUE UNDER PENALTIES OF PERJURY, OR OTHER EQUIVALENT DOCUMENTARY 23 PROOF, THAT THE EMPLOYEE IS A PRIMARY CARE GIVER FOR THE FAMILY MEMBER 24 DURING THE TIME OF DISABILITY. 25 Failure to furnish notice or proof within the time and in the manner 26 above provided shall not invalidate the claim but no benefits shall be 27 required to be paid for any period more than two weeks prior to the date 28 on which the required proof is furnished unless it shall be shown to the 29 satisfaction of the chair not to have been reasonably possible to 30 furnish such notice or proof and that such notice or proof was furnished 31 as soon as possible; provided, however, that no benefits shall be paid 32 unless the required proof of disability is furnished within twenty-six 33 weeks after commencement of the period of disability. No limitation of 34 time provided in this section shall run as against any person who is 35 mentally incompetent, or physically incapable of providing such notice 36 as a result of a serious medical condition, or a minor so long as such 37 person has no guardian of the person and/or property. 38 2. An employee claiming benefits FOR THE EMPLOYEE'S INJURY, SICKNESS 39 OR PREGNANCY, OR THE FAMILY MEMBER OF SUCH EMPLOYEE IN ANY CASE WHERE 40 THE EMPLOYEE CLAIMS FAMILY CARE BENEFITS FOR PROVIDING CARE TO THAT 41 FAMILY MEMBER shall, as requested by the employer or carrier, submit 42 himself or herself at intervals, but not more than once a week, for 43 examination by a [physician or podiatrist or chiropractor or dentist or 44 psychologist or certified nurse midwife] RELEVANT HEALTH CARE PROVIDER 45 designated by the employer or carrier. All such examinations shall be 46 without cost to the employee OR FAMILY MEMBER and shall be held at a 47 reasonable time and place. 48 3. The chair may direct the claimant WHO SEEKS DISABILITY BENEFITS FOR 49 HIS OR HER INJURY, SICKNESS OR PREGNANCY, OR THE CLAIMANT'S FAMILY 50 MEMBER WHERE THE CLAIMANT SEEKS DISABILITY BENEFITS FOR FAMILY LEAVE TO 51 PROVIDE CARE TO THAT FAMILY MEMBER to submit to examination by a [physi- 52 cian or podiatrist or chiropractor or dentist or psychologist] RELEVANT 53 HEALTH CARE PROVIDER designated by him or her in any case in which the 54 claim to disability benefits is contested and in claims arising under 55 section two hundred seven OF THIS ARTICLE, and in other cases as the 56 chair or board may require. A. 6289 9 1 4. Refusal of the claimant OR FAMILY MEMBER without good cause to 2 submit to any such examination shall disqualify [him] THE CLAIMANT from 3 all benefits hereunder for the period of such refusal, except as to 4 benefits already paid. 5 S 16. Section 221 of the workers' compensation law, as separately 6 amended by chapters 425 and 500 of the laws of 1985, is amended to read 7 as follows: 8 S 221. Determination of contested claims for disability benefits. 9 Within twenty-six weeks of written notice of rejection of claim, DENIAL 10 OF RIGHTS UNDER SECTION TWO HUNDRED THREE-A OR TWO HUNDRED THREE-B OF 11 THIS ARTICLE, the employee may file with the [chairman] CHAIR a notice 12 that his or her claim for disability benefits has not been paid, [and] 13 OR THAT THE EMPLOYEE HAS BEEN DENIED RIGHTS GUARANTEED BY SECTION TWO 14 HUNDRED THREE-A OR TWO HUNDRED THREE-B OF THIS ARTICLE. IN CASES OF 15 DENIAL OF BENEFITS, the employee shall submit proof of disability OR 16 ELIGIBILITY FOR FAMILY CARE and of his or her employment, wages and 17 other facts reasonably necessary for determination of the employee's 18 right to such benefits OR PROOF OF DENIAL OF RIGHTS UNDER SECTION TWO 19 HUNDRED THREE-A OR TWO HUNDRED THREE-B OF THIS ARTICLE OR OF 20 RETALIATION. Failure to file such notice within the time provided, may 21 be excused by the [chairman] CHAIR if it can be shown to the satisfac- 22 tion of the [chairman] CHAIR not to have been reasonably possible to 23 furnish such notice and that such notice was furnished as soon as possi- 24 ble. On demand of the [chairman] CHAIR the employer or carrier shall 25 forthwith deliver to the [chairman] CHAIR PROOF OF DISABILITY, INCLUDING 26 IF RELEVANT the original or a true copy of the attending physician's or 27 attending podiatrist's or accredited practitioner's statement, wage and 28 employment data and all other papers in the possession of the employer 29 or carrier with respect to such claim OR COMPLAINT. 30 The board shall have full power and authority to determine all issues 31 in relation to every such claim for disability OR FAMILY CARE benefits 32 required or provided under this article, OR WITH RESPECT TO DENIAL OF 33 RIGHTS UNDER SECTION TWO HUNDRED THREE-A OR TWO HUNDRED THREE-B OF THIS 34 ARTICLE OR INCLUDING ORDERING PAYMENT OF BENEFITS, DAMAGES AND REIN- 35 STATEMENT and shall file its decision in the office of the [chairman] 36 CHAIR. Upon such filing, the [chairman] CHAIR shall send to the parties 37 a copy of the decision. Either party may present evidence and be repres- 38 ented by counsel at any hearing on such claim. The decision of the 39 board shall be final as to all questions of fact and, except as provided 40 in section twenty-three of this chapter, as to all questions of law. 41 Every decision of the board shall be complied with in accordance with 42 its terms within ten days thereafter except in case of appeal, and any 43 payments due under such decision shall draw simple interest from thirty 44 days after the making thereof at the rate provided in section five thou- 45 sand four of the civil practice law and rules. 46 S 17. Subdivision 2 of section 229 of the workers' compensation law, 47 as added by chapter 271 of the laws of 1985, is amended to read as 48 follows: 49 2. Whenever an employee of a covered employer who is eligible for 50 benefits under section two hundred four of this article shall be absent 51 from work due to a disability as defined in subdivision nine of section 52 two hundred one of this article for more than seven consecutive days, 53 the employer shall provide the employee with a written statement of the 54 employee's rights under this article in a form prescribed by the [chair- 55 man] CHAIR. The statement shall be provided to the employee within five 56 business days after the employee's seventh consecutive day of absence A. 6289 10 1 due to disability or within five business days after the employer knows 2 or should know that the employee's absence is due to disability, which- 3 ever is later. EACH COVERED EMPLOYER SHALL PROVIDE EACH EMPLOYEE WITH A 4 TYPEWRITTEN, PRINTED OR ELECTRONIC NOTICE IN A FORM PRESCRIBED BY THE 5 CHAIR, STATING THAT THE EMPLOYER HAS PROVIDED FOR THE PAYMENT OF DISA- 6 BILITY BENEFITS AS REQUIRED BY THIS ARTICLE WITHIN THIRTY DAYS OF THE 7 EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND ELEVEN WHICH 8 AMENDED THIS SUBDIVISION. EACH COVERED EMPLOYER SHALL PROVIDE SUCH 9 NOTICE TO ALL NEW EMPLOYEES WITHIN THIRTY DAYS OF THEIR FIRST DAY OF 10 WORK. 11 S 18. The workers' compensation law is amended by adding a new section 12 239-a to read as follows: 13 S 239-A. FAMILY CARE STUDY AND MONITORING. 1. THE DEPARTMENT OF 14 INSURANCE SHALL STUDY, AND REPORT TO THE GOVERNOR AND BOTH HOUSES OF THE 15 LEGISLATURE BY APRIL FIRST, TWO THOUSAND TWELVE, ON THE FEASIBILITY AND 16 IMPACT OF COMMUNITY RATING DISABILITY INSURANCE OR ANY ASPECT THEREOF. 17 2. THERE SHALL BE CREATED THE FAMILY CARE ADVISORY COUNCIL, WHICH 18 SHALL CONSIST OF FIFTEEN MEMBERS TO BE APPOINTED BY THE GOVERNOR AS 19 FOLLOWS: TWO ON RECOMMENDATION BY THE NEW YORK STATE AMERICAN FEDERATION 20 OF LABOR-CONGRESS OF INDUSTRIAL ORGANIZATIONS, ONE OF WHOM SHALL BE 21 REPRESENTATIVE OF PUBLIC EMPLOYEE ORGANIZATIONS CERTIFIED UNDER ARTICLE 22 FOURTEEN OF THE CIVIL SERVICE LAW, PARTICIPATING IN THE PAID FAMILY CARE 23 PLAN, ONE OF WHOM IS REPRESENTATIVE OF UNIONS REPRESENTING WORKERS 24 EMPLOYED IN THE PRIVATE SECTOR; TWO WHO ARE REPRESENTATIVES OF ORGANIZA- 25 TIONS THAT REPRESENT EITHER COVERED BUSINESS OR PUBLIC EMPLOYERS IN NEW 26 YORK STATE PARTICIPATING IN THE PAID FAMILY LEAVE PLAN; TWO ON NOMI- 27 NATION OF THE SPEAKER OF THE ASSEMBLY; ONE ON NOMINATION BY THE MINORITY 28 LEADER OF THE ASSEMBLY; TWO ON NOMINATION BY THE TEMPORARY PRESIDENT OF 29 THE SENATE; ONE ON NOMINATION BY THE MINORITY LEADER OF THE SENATE; AND 30 THE SUPERINTENDENT OF INSURANCE, COMMISSIONER OF LABOR AND CHAIR OF THE 31 WORKERS' COMPENSATION BOARD, WHO SHALL SERVE AS MEMBERS EX OFFICIO. THE 32 COMMISSIONER OF LABOR SHALL SERVE AS CHAIR OF THE COUNCIL. THE SUPER- 33 INTENDENT OF INSURANCE AND CHAIR OF THE WORKERS' COMPENSATION BOARD 34 SHALL CONSULT REGULARLY WITH THE COUNCIL ON THE IMPLEMENTATION OF THE 35 FAMILY CARE BENEFIT. THE DEPARTMENT OF LABOR, THE INSURANCE DEPARTMENT 36 AND THE WORKERS' COMPENSATION BOARD SHALL PROVIDE ALL NECESSARY PERSON- 37 NEL AND LOGISTICAL SUPPORT AS MAY BE NECESSARY TO COMPLETE THE DUTIES OF 38 THE ADVISORY COUNCIL. THE COUNCIL OR ANY OF ITS MEMBERS MAY ISSUE SUCH 39 RECOMMENDATIONS OR REPORTS AS THEY DEEM WARRANTED ON THE FAMILY CARE 40 BENEFIT, INCLUDING ON THE SCOPE OF THE BENEFIT, PROBLEMS WITH THE BENE- 41 FIT; FUNDING OF THE BENEFIT INCLUDING PASS-THROUGH COSTS; POSSIBLE 42 STATUTORY AMENDMENTS AND REGULATORY CHANGES; USAGE RATES; OUTREACH; AND 43 COMMUNITY RATING. ANY SUCH RECOMMENDATIONS OR REPORTS SHALL BE PROVIDED 44 TO THE GOVERNOR, SUPERINTENDENT OF INSURANCE, SPEAKER OF THE ASSEMBLY, 45 TEMPORARY PRESIDENT OF THE SENATE AND MINORITY LEADERS OF THE SENATE AND 46 ASSEMBLY. EACH MEMBER OF THE COMMISSION SHALL SERVE A TERM OF THREE 47 YEARS. AN APPOINTMENT TO FILL A VACANCY SHALL BE MADE FOR THE REMAINDER 48 OF THE AFFECTED TERM. MEMBERS SHALL RECEIVE NO COMPENSATION. 49 S 19. Paragraph 3 of subsection (a) of section 1113 of the insurance 50 law is amended to read as follows: 51 (3) "Accident and health insurance," means (i) insurance against death 52 or personal injury by accident or by any specified kind or kinds of 53 accident and insurance against sickness, ailment or bodily injury, 54 including insurance providing disability benefits pursuant to article 55 nine of the workers' compensation law, INCLUDING ANY INSURANCE UNDER 56 THAT ARTICLE FOR FAMILY CARE BENEFITS, DISABILITY BENEFITS RESULTING A. 6289 11 1 FROM INJURY, SICKNESS OR PREGNANCY OF AN EMPLOYEE, OR ALL, except as 2 specified in item (ii) [hereof] OF THIS PARAGRAPH; and (ii) non-cancell- 3 able disability insurance, meaning insurance against disability result- 4 ing from sickness, ailment or bodily injury (but excluding insurance 5 solely against accidental injury) under any contract which does not give 6 the insurer the option to cancel or otherwise terminate the contract at 7 or after one year from its effective date or renewal date. 8 S 20. This act shall take effect immediately; provided, however, that: 9 (a) Sections two, three, four, five, six, seven, eight, nine, ten, 10 eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen and 11 nineteen of this act shall take effect January 1, 2012. 12 (b) Paragraph a of subdivision 3 of section 211-a of the workers' 13 compensation law, as added by section thirteen of this act allowing 14 public employees to opt in to family care benefits prior to July 1, 2012 15 and subdivision 1 of section 212 of the workers' compensation law as 16 amended by section fourteen of this act allowing public employers to opt 17 in to family care benefits prior to July 1, 2012, shall take effect 18 immediately. 19 (c) Effective immediately, the addition, amendment and/or repeal of 20 any rules or regulations necessary for the implementation of this act on 21 its effective date are authorized and directed to be made and completed 22 on or before such effective date.