Bill Text: NY S05250 | 2021-2022 | General Assembly | Introduced
Bill Title: Establishes the excluded workers fund to provide payments to workers who suffered a loss of work-related earnings or a major source of household income during a state of emergency declared by the governor and who are otherwise ineligible for unemployment insurance.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-01-05 - REFERRED TO LABOR [S05250 Detail]
Download: New_York-2021-S05250-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5250 2021-2022 Regular Sessions IN SENATE February 26, 2021 ___________ Introduced by Sen. MAYER -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the workers' compensation law, in relation to establish- ing the excluded workers fund to provide payments to workers who suffered a loss of work-related earnings or a major source of house- hold income during a state of emergency declared by the governor and who are otherwise ineligible for unemployment insurance The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 201 of the workers' compensation law is amended by 2 adding a new subdivision 24 to read as follows: 3 24. "Excluded worker" means an individual who is a legal resident of 4 New York state, a permanent lawful resident of New York state, a lawful 5 non-immigrant alien or an individual without lawful immigration status 6 whose principal place of residence is in New York state, and, who: 7 (a) does not meet the eligibility requirements: 8 (i) for unemployment insurance benefits under article eighteen of the 9 labor law, including benefits payable to federal civilian employees and 10 to ex-servicemen and servicewomen pursuant to chapter 85 of the United 11 States Code, and benefits authorized to be used for the self-employment 12 assistance program pursuant to the Federal-State Extended Unemployment 13 Compensation Act of 1970; 14 (ii) for insurance or assistance payments under any programs provided 15 for by Title II of the federal CARES Act; or 16 (iii) payments under the Presidential Memorandum Authorizing the Other 17 Needs Assistance Program for Major Disaster Declarations Related to 18 Coronavirus Disease 2019, issued on August 8, 2020, and 19 (b) (i) suffered a loss: 20 (A) of work-related earnings; or 21 (B) of one or more major sources of household income due to the death 22 or disability of a close household member, on whose income the household EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09483-01-1S. 5250 2 1 depended, during a state of emergency declared by the governor, provided 2 that no other individual in the household is receiving benefits pursuant 3 to this article for the same month for the same reason. Such benefits 4 shall only be accessed during calendar quarters during which the U.S. 5 Bureau of Labor Statistics reports a seasonally adjusted unemployment 6 rate of six percent or more in the state; or 7 (ii) was released from post-arraignment incarceration or detention or 8 from immigration detention on or after October first, two thousand nine- 9 teen. 10 § 2. The workers' compensation law is amended by adding a new section 11 207-a to read as follows: 12 § 207-a. Workers excluded from unemployment insurance benefits. 1. 13 Eligibility. Excluded workers as defined in this article shall be eligi- 14 ble for benefits under this section in the same manner as if they were 15 receiving disability benefits under paragraph (b) of subdivision two of 16 section two hundred four of this article, and the weekly benefit of an 17 excluded worker shall be computed in the same manner as provided in such 18 paragraph (b), and the benefits such worker is entitled to receive shall 19 be subject to the limitations as to maximum and minimum amounts and 20 duration and other conditions and limitations prescribed in sections two 21 hundred four, two hundred five and two hundred six of this article. 22 2. Payment of benefits. (a) The benefits payable under this section 23 shall be subject to the provisions and limitations generally applicable 24 to disability benefits payable under this article, and shall be paid by 25 the chair out of any assets in the fund created by section two hundred 26 fourteen-a of this article, provided, however, that payments shall not 27 be subject to the provisions of section twelve of this chapter or para- 28 graph (a) of subdivision one of section two hundred five of this arti- 29 cle. 30 (b) Payments shall continue until the last day of any calendar quarter 31 during which the U.S. Bureau of Labor Statistics reports a seasonally 32 adjusted unemployment rate of six percent or more in the state. 33 (c) (i) Payments shall be retroactive to the first date of earnings 34 loss during the state disaster emergency declared by executive order two 35 hundred two that began on March seventh, two thousand twenty or April 36 first, two thousand twenty, whichever occurs later, and any retroactive 37 benefits accrued to any such excluded worker as of the date on which 38 such excluded worker is first paid benefits under this section by reason 39 of this subparagraph shall be paid in full on such date on which the 40 first benefit is paid; and 41 (ii) Benefits shall not be available to any excluded worker if such 42 excluded worker's gross work-related earnings received in the previous 43 calendar month exceeded two thousand one hundred eighty-two dollars. 44 (d) The chair may also by regulation establish reasonable procedures 45 for determining pro rata benefits payable with respect to periods of 46 eligibility of less than one week. 47 3. Application for benefits. (a) Notwithstanding anything in this 48 chapter to the contrary, each individual eligible for benefits pursuant 49 to subdivision one of this section shall make application to the chair 50 in such form and at such time as the chairperson may prescribe, which 51 application shall include at least two of the following: 52 (i) Primary proof of identity including, but not limited to, a driv- 53 er's license, motor vehicle identification card number, valid foreign 54 driver's license that includes a photo image of the applicant and which 55 is unexpired or expired for less than twenty-four months of its date of 56 expiration, New York State identification, IDNYC or other New YorkS. 5250 3 1 municipal or county identification card, student identification card, 2 valid unexpired foreign passport issued by the applicant's country of 3 citizenship, or valid unexpired consular identification document issued 4 by a consulate from the applicant's country of citizenship. Nothing 5 contained in this subdivision shall be deemed to preclude the commis- 6 sioner from approving additional proofs of identity; 7 (ii) Social security number or, in lieu thereof, an individual taxpay- 8 er identification number or a United States citizenship and immigration 9 services number; 10 (iii) Names and addresses of all employers and/or hiring parties, in 11 and out of the state, for the last eighteen months to the extent that 12 such information is available to the applicant; or 13 (iv) Mailing address and zip code. 14 (b) Application forms prescribed by the chair shall not state (i) the 15 documents an applicant used to prove identity; (ii) an applicant's inel- 16 igibility for a social security number, where applicable; or (iii) an 17 applicant's citizenship or immigration status. 18 (c) Proof of eligibility may be established by documentation or, in 19 the absence of documentation, by self-attestation. 20 (d) Applicants shall not be required to prove that they are lawfully 21 present in the United States. 22 4. Any individual claiming benefits under this section whose claim is 23 rejected in whole or in part by the chair shall be entitled to request a 24 review of such claim. The review shall be conducted by a single arbitra- 25 tor process, pursuant to rules promulgated by the chair, and a decision 26 on review of the rejected claim shall be decided pursuant to such single 27 arbitrator process. Decisions rendered under the single arbitrator proc- 28 ess shall be conclusive upon the parties. 29 § 3. The workers' compensation law is amended by adding a new section 30 214-a to read as follows: 31 § 214-a. Special fund for excluded workers. There is hereby created a 32 fund which shall be known as the special fund for excluded workers, to 33 provide for the payment of disability benefits under section two hundred 34 seven-a of this article. 35 1. Thirty days after the effective date of this section, the chair 36 shall assess and collect an amount equal to one billion dollars. Such 37 assessment shall be in addition to the assessment rate established 38 pursuant to subdivision two of section one hundred fifty-one of this 39 chapter. Such assessment shall be deposited with the commissioner of 40 taxation and finance and transferred to the benefit of such fund upon 41 payment of debt service, if any, pursuant to section one hundred fifty- 42 one of this chapter. 43 2. Whenever the net assets of the fund shall be less than fifty 44 million dollars and the claims currently being paid shall indicate the 45 necessity of supplementing the assets of the fund the chair may transfer 46 from monies collected pursuant to subdivision two of section one hundred 47 fifty-one of this chapter an amount sufficient in the discretion of the 48 chair for the needs of the fund, but not in excess of an amount suffi- 49 cient to restore the fund to fifty million dollars. 50 3. All contributions and assessments received by the chair under the 51 provisions of this section shall be credited to the fund herein estab- 52 lished and deposited by the chair to the credit of the commissioner of 53 taxation and finance for the benefit of the fund. The superintendent of 54 financial services may examine into the condition of the fund at any 55 time on his own initiative or upon the request of the chair.S. 5250 4 1 4. Moneys of the fund shall not be used in whole or in part for any 2 purpose or in any manner which (a) would permit its substitution for, or 3 a corresponding reduction in, federal funds that would be available in 4 its absence to finance expenditures for the administration of this arti- 5 cle; or (b) would cause the appropriate agency of the United States 6 government to withhold any part of an administrative grant which would 7 otherwise be made. 8 § 4. Subdivisions 1, 2 and 3 of section 151 of the workers' compen- 9 sation law, subdivisions 1 and 2 as added by section 22 of part GG of 10 chapter 57 of the laws of 2013, subdivision 3 as amended by section 1 of 11 subpart J of part NNN of chapter 59 of the laws of 2017, are amended to 12 read as follows: 13 1. The annual expenses necessary for the board to administer the 14 provisions of this chapter, the volunteer ambulance workers' benefit 15 law, the volunteer firefighters' benefit law, the disability benefits 16 law, and the workmen's compensation act for civil defense volunteers 17 shall be borne by affected employers securing compensation for their 18 employees pursuant to section fifty of this chapter. The board shall 19 collect such annual expenses from affected employers through assessments 20 as provided by the provisions of this section, including for purposes of 21 this subdivision: (a) the aggregate assessment amount described in 22 subparagraph four of paragraph (h) of subdivision eight of section 23 fifteen of this chapter for the special disability fund in accordance 24 with each financing agreement described in such subparagraph, (b) the 25 aggregate assessment amount described in section fifty-c of this chapter 26 for the self-insurer offset fund in accordance with each financing 27 agreement described in such section, (c) the assessment amount described 28 in subdivision three of section twenty-five-a of this chapter for the 29 fund for reopened cases [and], (d) the assessment amount described in 30 section two hundred fourteen of this chapter for the special fund for 31 disability benefits, and (e) the assessment amount described in section 32 two hundred fourteen-a of this chapter for the special fund for excluded 33 workers; provided, that the foregoing and any other provision of this 34 chapter to the contrary notwithstanding, assessment receipts shall be 35 applied first to fully fund the amount described in subparagraph four of 36 paragraph (h) of subdivision eight of section fifteen of this chapter 37 and then to fully fund the amount described in section fifty-c of this 38 chapter in accordance with each then applicable financing agreement 39 pursuant to such provisions prior to application to any other purpose 40 other than to pay any actual costs of collecting such assessment that 41 are not otherwise funded. For purposes of this section, affected employ- 42 er means all employers required to obtain workers' compensation coverage 43 pursuant to this chapter. 44 2. On the first day of November, two thousand thirteen, and annually 45 thereafter, the chair shall establish an assessment rate for all 46 affected employers in the state of New York in an amount expected to be 47 sufficient to produce assessment receipts at least sufficient to fund 48 all estimated annual expenses pursuant to subdivision one of this 49 section except those expenses for which an assessment is authorized for 50 self-insurance pursuant to subdivision five of section fifty of this 51 chapter. Such rate shall be assessed effective the first of January of 52 the succeeding year and shall be based upon a single methodology deter- 53 mined by the chair; provided, however, that for assessments for the 54 special fund for excluded workers under section two hundred fourteen-a 55 of this chapter the chair shall establish assessment rates as follows: 56 (a) ninety percent of the total assessment shall be borne by employersS. 5250 5 1 subject to this assessment employing five hundred or more employees, in 2 an amount per such employer equal to the aggregate amount borne by all 3 such employers multiplied by a fraction, the numerator of which is the 4 number of employees employed by such employer and the denominator of 5 which is the aggregate number of employees employed by all employers 6 employing five hundred or more employees subject to this assessment, as 7 determined by the board, (b) five percent of the total assessment shall 8 be borne by employers subject to this assessment employing more than 9 ninety-nine but fewer than five hundred employees, in an amount per such 10 employer equal to the aggregate amount borne by all such employers 11 multiplied by a fraction, the numerator of which is the number of 12 employees employed by such employer and the denominator of which is the 13 aggregate number of employees employed by all employers subject to this 14 assessment employing more than ninety-nine but fewer than five hundred 15 employees, as determined by the board, (c) two and one-half percent of 16 the total assessment shall be borne by employers subject to this assess- 17 ment employing more than ten but fewer than one hundred employees, in an 18 amount per such employer equal to the aggregate amount borne by all such 19 employers multiplied by a fraction, the numerator of which is the number 20 of employees employed by such employer and the denominator of which is 21 the aggregate number of employees employed by all employers subject to 22 this assessment employing more than ten but fewer than one hundred 23 employees, as determined by the board, and (d) two and one-half percent 24 of the total assessment shall be borne by employers subject to this 25 assessment employing fewer than ten employees, in an amount per such 26 employer equal to the aggregate amount borne by all such employers 27 multiplied by a fraction, the numerator of which is the number of 28 employees employed by such employer and the denominator of which is the 29 aggregate number of employees employed by all employers subject to this 30 assessment employing fewer than ten employees, as determined by the 31 board. The chair may also establish an additional assessment rate, not 32 to exceed thirty percent of annual premiums, for those affected employ- 33 ers who are in default in the payment of their compensation pursuant to 34 subparagraph (b) of paragraph seven of subdivision three-a of section 35 [50] fifty of this chapter. Such additional assessment shall be 36 collected and remitted to the chair consistent with subdivisions four 37 and five of this section. The chair shall make available for public 38 inspection an itemized statement of the estimated annual expenses in the 39 office of the board for thirty days immediately after the rate is estab- 40 lished. 41 3. The chair and department of audit and control annually as soon as 42 practicable after the first of April of each year shall ascertain the 43 actual total amount of expenses, including in addition to the direct 44 costs of personal service, the cost of maintenance and operation, the 45 cost of retirement contributions made and workers' compensation premiums 46 paid by the state for or on account of personnel, rentals for space 47 occupied in state owned or state leased buildings, such additional sum 48 as may be certified to the chair and the department of audit and control 49 as a reasonable compensation for services rendered by the department of 50 law and expenses incurred by such department, for transfer into the 51 training and educational program on occupational safety and health fund 52 created pursuant to chapter eight hundred eighty-six of the laws of 53 nineteen hundred eighty-five and section ninety-seven-c of the state 54 finance law, for the New York state occupational health clinics network, 55 for the department of labor occupational safety and health program and 56 for transfer into the uninsured employers' fund pursuant to subdivisionS. 5250 6 1 two of section twenty-six-a of this chapter, and all other direct or 2 indirect costs, incurred by the board in connection with the adminis- 3 tration of this chapter, except those expenses for which an assessment 4 is authorized for self-insurance pursuant to subdivision five of section 5 fifty of this chapter. Assessments pursuant to subparagraph four of 6 paragraph (h) of subdivision eight of section fifteen of this chapter 7 for the special disability fund, pursuant to section fifty-c of this 8 chapter for the self insurer offset fund, pursuant to subdivision three 9 of section twenty-five-a of this chapter for the fund for reopened 10 cases, [and] pursuant to section two hundred fourteen of this chapter 11 for the special fund for disability benefits, and pursuant to section 12 two hundred fourteen-a of this chapter for the special fund for excluded 13 workers, shall be included in the total amount of expenses for the 14 purposes of this subdivision. Any overpayment of annual assessments 15 resulting from the requirements of this subdivision shall be applied as 16 a credit against the future assessment rate provided the fund balance 17 shall not be reduced below five percent of the total amount assessed. 18 § 5. The workers' compensation law is amended by adding a new section 19 110-aa to read as follows: 20 § 110-aa. Confidentiality of excluded workers' records. 1. 21 Restrictions on disclosure. (a) Except where necessary to comply with a 22 lawful court order, judicial warrant signed by a judge appointed pursu- 23 ant to article III of the United States constitution, or subpoena for 24 individual records issued pursuant to the criminal procedure law or the 25 civil practice law and rules, or in accordance with subdivision two or 26 three of this section, no record or portion thereof relating to a claim- 27 ant or worker who has filed a claim for benefits pursuant to section two 28 hundred seven-a of this chapter is a public record and no such record 29 shall be disclosed, redisclosed, released, disseminated or otherwise 30 published or made available. 31 (b) For purposes of this section: 32 (i) "record" means a claim file, a file regarding a complaint or 33 circumstances for which no claim has been made, and/or any records main- 34 tained by the board in electronic databases in which individual claim- 35 ants or workers are identifiable, or any other information relating to 36 any person who has heretofore or hereafter filed a claim for benefits 37 pursuant to section two hundred seven-a of this chapter, including a 38 copy or oral description of a record which is or was in the possession 39 or custody of the board, its officers, members, employees or agents. 40 (ii) "person" means any natural person, corporation, association, 41 partnership, or other public or private entity. 42 (iii) "individually identifiable information" means any data concern- 43 ing any claim or potential claim that is linked to an identifiable work- 44 er or other natural person, including but not limited to a photo image, 45 social security number or tax identification number, telephone number, 46 place of birth, country of origin, place of employment, school or educa- 47 tional institution attended, source of income, status as a recipient of 48 public benefits, a customer identification number associated with a 49 public utilities account, or medical or disability information. 50 2. Authorized disclosure. Records which contain individually identifi- 51 able information may, unless otherwise prohibited by law, be disclosed 52 to: 53 (a) those officers, members and employees of the board if such disclo- 54 sure is necessary to the performance of their official duties pursuant 55 to a purpose of the board required to be accomplished by statute or 56 executive order or otherwise necessary to act upon an application forS. 5250 7 1 benefits submitted by the person who is the subject of the particular 2 record; 3 (b) officers or employees of another governmental unit, or agents 4 and/or contractors of the governmental unit at the request and/or direc- 5 tion of the governmental unit, if the information sought to be disclosed 6 is necessary to act upon an application for benefits submitted by the 7 person who is the subject of the particular record; 8 (c) a judicial or administrative officer or employee in connection 9 with an administrative or judicial proceeding if the information sought 10 to be disclosed is necessary to act upon an application for benefits 11 submitted by the person who is the subject of the particular record; and 12 (d) a person engaged in bona fide statistical research, including but 13 not limited to actuarial studies and health and safety investigations, 14 which are authorized by statute or regulation of the board or other 15 governmental agency. Individually identifiable information shall not be 16 disclosed unless the researcher has entered into an agreement not to 17 disclose any individually identifiable information which contains 18 restrictions no less restrictive than the restrictions set forth in this 19 section and which includes an agreement that any research findings will 20 not disclose individually identifiable information. 21 3. Individual authorization. Notwithstanding the restrictions on 22 disclosure set forth under subdivision one of this section, a person who 23 is the subject of a workers' compensation record may authorize the 24 release, re-release or publication of his or her record to a specific 25 person not otherwise authorized to receive such record, by submitting 26 written authorization for such release to the board on a form prescribed 27 by the chair or by a notarized original authorization specifically 28 directing the board to release workers' compensation records to such 29 person. However, in accordance with section one hundred twenty-five of 30 this article, no such authorization directing disclosure of records to a 31 prospective employer shall be valid; nor shall an authorization permit- 32 ting disclosure of records in connection with assessing fitness or capa- 33 bility for employment be valid, and no disclosure of records shall be 34 made pursuant thereto. It shall be unlawful for any person to consider 35 for the purpose of assessing eligibility for a benefit, or as the basis 36 for an employment-related action, an individual's failure to provide 37 authorization under this subdivision. 38 4. For the purposes of this section, whenever disclosure of records is 39 sought pursuant to a lawful court order, judicial warrant, or subpoena 40 for individual records properly issued pursuant to the criminal proce- 41 dure law or the civil practice law and rules or pursuant to subdivision 42 two or three of this section, only those records, documents, and infor- 43 mation specifically sought may be disclosed, and any such disclosure 44 shall be limited to such records as are necessary to fulfill the purpose 45 of such disclosure. 46 5. The chair shall require any person or entity that receives or has 47 access to records to certify to the chair that, before such receipt or 48 access, such person or entity shall not: 49 (a) use such records or information for civil immigration purposes; or 50 (b) disclose such records or information to any agency that primarily 51 enforces immigration law or to any employee or agent of any such agency 52 unless such disclosure is pursuant to a cooperative arrangement between 53 city, state and federal agencies which arrangement does not enforce 54 immigration law and which disclosure is limited to the specific records 55 or information being sought pursuant to such arrangement. Violation of 56 such certification shall be a class A misdemeanor. In addition to anyS. 5250 8 1 records required to be kept pursuant to subdivision (c) of section 2721 2 of title 18 of the United States code, any person or entity certifying 3 pursuant to this paragraph shall keep for a period of five years records 4 of all uses and identifying each person or entity that primarily 5 enforces immigration law that received department records or information 6 from such certifying person or entity. Such records shall be maintained 7 in a manner and form prescribed by the chair and shall be available for 8 inspection by the chair or his or her designee upon his or her request. 9 (c) For purposes of this subdivision, the term "agency that primarily 10 enforces immigration law" shall include, but not be limited to, United 11 States immigration and customs enforcement and United States customs and 12 border protection, and any successor agencies having similar duties. 13 (d) Failure to maintain records as required by this subdivision shall 14 be a class A misdemeanor. 15 6. Except as otherwise provided by this section, any person who know- 16 ingly and willfully obtains records which contain individually identifi- 17 able information under false pretenses or otherwise violates this 18 section shall be guilty of a class E felony. 19 7. In addition to or in lieu of any criminal proceeding available 20 under this section, whenever there shall be a violation of this section, 21 application may be made by the attorney general in the name of the 22 people of the state of New York to a court or justice having jurisdic- 23 tion by a special proceeding to issue an injunction, and upon notice to 24 the defendant of not less than five days, to enjoin and restrain the 25 continuance of such violations; and if it shall appear to the satisfac- 26 tion of the court or justice that the defendant has, in fact, violated 27 this section, an injunction may be issued by such court or justice, 28 enjoining and restraining any further violation, without requiring proof 29 that any person has, in fact, been injured or damaged thereby. In any 30 such proceeding, the court may make allowances to the attorney general 31 as provided in paragraph six of subdivision (a) of section eighty-three 32 hundred three of the civil practice law and rules, and direct restitu- 33 tion. Whenever the court shall determine that a violation of this 34 section has occurred, the court may impose a civil penalty of not more 35 than five hundred dollars for the first violation, and not more than one 36 thousand dollars for the second or subsequent violation within a three 37 year period. In connection with any such proposed application, the 38 attorney general is authorized to take proof and make a determination of 39 the relevant facts and to issue subpoenas in accordance with the civil 40 practice law and rules. 41 § 6. This act shall take effect immediately.