S T A T E O F N E W Y O R K ________________________________________________________________________ 5541--A 2015-2016 Regular Sessions I N S E N A T E May 14, 2015 ___________ Introduced by Sens. BONACIC, MARCHIONE -- read twice and ordered print- ed, and when printed to be committed to the Committee on Racing, Gaming and Wagering -- reported favorably from said committee and committed to the Committee on Rules -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the racing, pari-mutuel wagering and breeding law and the workers' compensation law, in relation to the New York Jockey Injury Compensation Fund, Inc. THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivision 6 of section 221 of the racing, pari-mutuel 2 wagering and breeding law as amended by chapter 325 of the laws of 2004 3 and such section as renumbered by chapter 18 of the laws of 2008, is 4 amended to read as follows: 5 6. [The] (A) PURSUANT TO THE ELECTION AUTHORIZED IN PARAGRAPH (B) OF 6 THIS SUBDIVISION, THE fund shall secure workers' compensation insurance 7 coverage on a blanket basis for the benefit of EITHER (I) all jockeys, 8 apprentice jockeys and exercise persons, OR (II) ALL JOCKEYS AND APPREN- 9 TICE JOCKEYS licensed pursuant to this article or article four of this 10 chapter who are employees under section two of the workers' compensation 11 law. 12 (B) THE FUND MAY, IN ITS SOLE DISCRETION, ELECT TO SECURE WORKERS' 13 COMPENSATION INSURANCE ON A BLANKET BASIS FOR THE BENEFIT OF EITHER OF 14 THE TWO CLASSES IDENTIFIED IN SUBPARAGRAPH (I) OR (II) OF PARAGRAPH (A) 15 OF THIS SUBDIVISION, AND IT SHALL PROVIDE THE WORKERS' COMPENSATION 16 BOARD WITH NOTICE WITHIN FIFTEEN DAYS OF MAKING SUCH ELECTION. 17 S 2. The fourth undesignated paragraph of subdivision 7 of section 221 18 of the racing, pari-mutuel wagering and breeding law, as amended by 19 chapter 18 of the laws of 2008, is amended to read as follows: EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11066-02-5 S. 5541--A 2 1 All amounts collected by a horsemen's bookkeeper pursuant to this 2 section shall be transferred to the fund created under this section and 3 shall be used by the fund to purchase workers' compensation insurance 4 for EITHER (I) ALL jockeys, apprentice jockeys and exercise persons OR 5 (II) ALL JOCKEYS AND APPRENTICE JOCKEYS AS AUTHORIZED IN SUBDIVISION SIX 6 OF THIS SECTION licensed pursuant to this article or article four of 7 this chapter who are employees under section two of the workers' compen- 8 sation law, to pay for any of its liabilities under section fourteen-a 9 of the workers' compensation law and to administer the workers' compen- 10 sation program for EITHER (I) such jockeys, apprentice jockeys and exer- 11 cise persons, OR (II) SUCH JOCKEYS AND APPRENTICE JOCKEYS, AS THE CASE 12 MAY BE, required by this section and the workers' compensation law. 13 S 3. The second undesignated paragraph of subdivision 3 of section 2 14 of the workers' compensation law, as amended by chapter 392 of the laws 15 of 2008, is amended to read as follows: 16 Notwithstanding any other provision of this chapter and for purposes 17 of this chapter only, "employer" shall mean, with respect to a jockey[,] 18 OR apprentice jockey or exercise person licensed under article two or 19 four of the racing, pari-mutuel wagering and breeding law performing 20 services for an owner or trainer in connection with the training or 21 racing of a horse at a facility of a racing association or corporation 22 subject to article two or four of the racing, pari-mutuel wagering and 23 breeding law and subject to the jurisdiction of the New York state 24 racing and wagering board, The New York Jockey Injury Compensation Fund, 25 Inc. and all owners and trainers who are licensed or required to be 26 licensed under article two or four of the racing, pari-mutuel wagering 27 and breeding law at the time of any occurrence for which benefits are 28 payable pursuant to this chapter in respect to the injury or death of 29 such jockey[,] OR apprentice jockey or exercise person PROVIDED, HOWEV- 30 ER, THAT WHERE THE NEW YORK JOCKEY INJURY COMPENSATION FUND MAKES THE 31 ELECTION AS AUTHORIZED IN SUBDIVISION SIX OF SECTION TWO HUNDRED TWEN- 32 TY-ONE OF THE RACING, PARI-MUTUEL WAGERING AND BREEDING LAW TO SECURE 33 WORKERS' COMPENSATION INSURANCE ONLY FOR JOCKEYS AND APPRENTICE JOCKEYS 34 "EMPLOYER" SHALL MEAN, WITH RESPECT TO AN EXERCISE PERSON LICENSED UNDER 35 ARTICLE TWO OR FOUR OF THE RACING, PARI-MUTUEL WAGERING AND BREEDING LAW 36 PERFORMING SERVICES FOR AN OWNER OR TRAINER IN CONNECTION WITH THE 37 TRAINING OR RACING OF A HORSE AT A FACILITY OF A RACING ASSOCIATION OR 38 CORPORATION SUBJECT TO ARTICLE TWO OR FOUR OF THE RACING, PARI-MUTUEL 39 WAGERING AND BREEDING LAW AND SUBJECT TO THE JURISDICTION OF THE NEW 40 YORK STATE RACING AND WAGERING BOARD, THE OWNER AND TRAINER WHO ARE 41 LICENSED OR REQUIRED TO BE LICENSED UNDER ARTICLE TWO OR FOUR OF THE 42 RACING, PARI-MUTUEL WAGERING AND BREEDING LAW AT THE TIME OF ANY OCCUR- 43 RENCE FOR WHICH BENEFITS ARE PAYABLE PURSUANT TO THIS CHAPTER IN RESPECT 44 TO THE INJURY OR DEATH OF SUCH EXERCISE PERSON. 45 S 4. The fifth undesignated paragraph of subdivision 4 of section 2 of 46 the workers' compensation law, as added by chapter 169 of the laws of 47 2007, is amended to read as follows: 48 Notwithstanding any other provision of this chapter, and for purposes 49 of this chapter only, a jockey, apprentice jockey or exercise person 50 licensed under article two or four of the racing, pari-mutuel wagering 51 and breeding law performing services for an owner or trainer in 52 connection with the training or racing of a horse at a facility of a 53 racing association or corporation subject to article two or four of the 54 racing, pari-mutuel wagering and breeding law and subject to the juris- 55 diction of the New York state racing and wagering board shall be 56 regarded as the "employee" not solely of such owner or trainer, but S. 5541--A 3 1 shall instead be conclusively presumed to be the "employee" of The New 2 York Jockey Injury Compensation Fund, Inc. and also of all owners and 3 trainers who are licensed or required to be licensed under article two 4 or four of the racing, pari-mutuel wagering and breeding law at the time 5 of any occurrence for which benefits are payable pursuant to this chap- 6 ter in respect of the injury or death of such jockey, apprentice jockey 7 or exercise person PROVIDED, HOWEVER, THAT WHERE THE NEW YORK JOCKEY 8 INJURY COMPENSATION FUND MAKES THE ELECTION AS AUTHORIZED IN SUBDIVISION 9 SIX OF SECTION TWO HUNDRED TWENTY-ONE OF THE RACING, PARI-MUTUEL WAGER- 10 ING AND BREEDING LAW TO SECURE WORKERS' COMPENSATION INSURANCE ONLY FOR 11 JOCKEYS AND APPRENTICE JOCKEYS, WITH RESPECT TO AN EXERCISE PERSON 12 LICENSED UNDER ARTICLE TWO OR FOUR OF THE RACING, PARI-MUTUEL WAGERING 13 AND BREEDING LAW PERFORMING SERVICES FOR AN OWNER OR TRAINER IN 14 CONNECTION WITH THE TRAINING OR RACING OF A HORSE AT A FACILITY OF A 15 RACING ASSOCIATION OR CORPORATION SUBJECT TO ARTICLE TWO OR FOUR OF THE 16 RACING, PARI-MUTUEL WAGERING AND BREEDING LAW AND SUBJECT TO THE JURIS- 17 DICTION OF THE NEW YORK STATE RACING AND WAGERING BOARD, SUCH EXERCISE 18 PERSON SHALL BE REGARDED AS THE "EMPLOYEE" OF THE OWNER AND TRAINER WHO 19 ARE LICENSED OR REQUIRED TO BE LICENSED UNDER ARTICLE TWO OR FOUR OF THE 20 RACING, PARI-MUTUEL WAGERING AND BREEDING LAW AT THE TIME OF ANY OCCUR- 21 RENCE FOR WHICH BENEFITS ARE PAYABLE PURSUANT TO THIS CHAPTER IN RESPECT 22 TO THE INJURY OR DEATH OF SUCH EXERCISE PERSON. 23 S 5. The third undesignated paragraph of subdivision 5 of section 2 of 24 the workers' compensation law, as added by chapter 392 of the laws of 25 2008, is amended to read as follows: 26 Notwithstanding any other provision of this chapter, and for purposes 27 of this chapter only, a jockey, apprentice jockey or exercise person 28 licensed under article two or four of the racing, pari-mutuel wagering 29 and breeding law performing services for an owner or trainer in 30 connection with the training or racing of a horse at a facility of a 31 racing association or corporation subject to article two or four of the 32 racing, pari-mutuel wagering and breeding law and subject to the juris- 33 diction of the New York state racing and wagering board shall be 34 regarded as in the "employment" not solely of such owner and trainer, 35 but shall instead be conclusively presumed to be in the "employment" of 36 The New York Jockey Injury Compensation Fund, Inc. and of all owners and 37 trainers who are licensed or required to be licensed under article two 38 or four of the racing, pari-mutuel wagering and breeding law, at the 39 time of any occurrence for which benefits are payable pursuant to this 40 chapter in respect of the injury or death of such jockey, apprentice 41 jockey or exercise person, PROVIDED, HOWEVER, THAT WHERE THE NEW YORK 42 JOCKEY INJURY COMPENSATION FUND MAKES THE ELECTION AS AUTHORIZED IN 43 SUBDIVISION SIX OF SECTION TWO HUNDRED TWENTY-ONE OF THE RACING, 44 PARI-MUTUEL WAGERING AND BREEDING LAW TO SECURE WORKERS' COMPENSATION 45 INSURANCE ONLY FOR JOCKEYS AND APPRENTICE JOCKEYS AN EXERCISE PERSON 46 LICENSED UNDER ARTICLE TWO OR FOUR OF THE RACING, PARI-MUTUEL WAGERING 47 AND BREEDING LAW PERFORMING SERVICES FOR AN OWNER OR TRAINER IN 48 CONNECTION WITH THE TRAINING OR RACING OF A HORSE AT A FACILITY OF A 49 RACING ASSOCIATION OR CORPORATION SUBJECT TO ARTICLE TWO OR FOUR OF THE 50 RACING, PARI-MUTUEL WAGERING AND BREEDING LAW AND SUBJECT TO THE JURIS- 51 DICTION OF THE NEW YORK STATE RACING AND WAGERING BOARD, SHALL BE 52 REGARDED AS IN THE "EMPLOYMENT" OF THE OWNER AND TRAINER WHO ARE 53 LICENSED OR REQUIRED TO BE LICENSED UNDER ARTICLE TWO OR FOUR OF THE 54 RACING, PARI-MUTUEL WAGERING AND BREEDING LAW AT THE TIME OF ANY OCCUR- 55 RENCE FOR WHICH BENEFITS ARE PAYABLE PURSUANT TO THIS CHAPTER IN RESPECT 56 TO THE INJURY OR DEATH OF SUCH EXERCISE PERSON. For the purpose of this S. 5541--A 4 1 chapter only, whether a livery driver's performance of covered services, 2 as those terms are defined in article six-G of the executive law, 3 constitutes "employment" shall be determined in accordance with section 4 eighteen-c of this chapter. 5 S 6. The opening paragraph of section 11 of the workers' compensation 6 law, as amended by chapter 169 of the laws of 2007, is amended to read 7 as follows: 8 The liability of an employer prescribed by the last preceding section 9 shall be exclusive and in place of any other liability whatsoever, to 10 such employee, his or her personal representatives, spouse, parents, 11 dependents, distributees, or any person otherwise entitled to recover 12 damages, contribution or indemnity, at common law or otherwise, on 13 account of such injury or death or liability arising therefrom, except 14 that if an employer fails to secure the payment of compensation for his 15 or her injured employees and their dependents as provided in section 16 fifty of this chapter, an injured employee, or his or her legal repre- 17 sentative in case of death results from the injury, may, at his or her 18 option, elect to claim compensation under this chapter, or to maintain 19 an action in the courts for damages on account of such injury; and in 20 such an action it shall not be necessary to plead or prove freedom from 21 contributory negligence nor may the defendant plead as a defense that 22 the injury was caused by the negligence of a fellow servant nor that the 23 employee assumed the risk of his or her employment, nor that the injury 24 was due to the contributory negligence of the employee. The liability 25 under this chapter of The New York Jockey Injury Compensation Fund, Inc. 26 created under section two hundred [thirteen-a] TWENTY-ONE of the racing, 27 pari-mutuel wagering and breeding law shall be limited to the provision 28 of workers' compensation coverage to jockeys, apprentice jockeys and 29 exercise persons OR JOCKEYS AND APPRENTICE JOCKEYS AS licensed under 30 article two or four of the racing, pari-mutuel wagering and breeding law 31 and any statutory penalties resulting from the failure to provide such 32 coverage DEPENDENT UPON THE ELECTION MADE BY SUCH FUND PURSUANT TO 33 SUBDIVISION SIX OF SECTION TWO HUNDRED TWENTY-ONE OF THE RACING, 34 PARI-MUTUEL WAGERING AND BREEDING LAW. 35 S 7. Subdivision 4 of section 14-a of the workers' compensation law, 36 as amended by chapter 169 of the laws of 2007, is amended to read as 37 follows: 38 4. [With] WHERE THE ELECTION MADE BY THE NEW YORK JOCKEY INJURY 39 COMPENSATION FUND, INC. IS TO PROVIDE WORKERS' COMPENSATION FOR JOCK- 40 EYS, APPRENTICE JOCKEYS AND EXERCISE PERSONS, WITH respect to a jockey, 41 apprentice jockey or exercise person licensed under article two or four 42 of the racing, pari-mutuel wagering and breeding law who, pursuant to 43 section two of this chapter, is an employee of all owners and trainers 44 licensed or required to be licensed under article two or four of the 45 racing, pari-mutuel wagering and breeding law and The New York Jockey 46 Injury Compensation Fund, Inc., the owner or trainer for whom such jock- 47 ey, apprentice jockey or exercise person was performing services at the 48 time of the accident shall be solely responsible for the double payments 49 described in subdivision one of this section, to the extent that such 50 payments exceed any amounts otherwise payable with respect to such jock- 51 ey, apprentice jockey or exercise person under any other section of this 52 chapter, and the New York Jockey Injury Compensation Fund, Inc. shall 53 have no responsibility for such excess payments, unless there shall be a 54 failure of the responsible owner or trainer to pay such award within the 55 time provided under this chapter. In the event of such failure to pay 56 and the board requires the fund to pay the award on behalf of such owner S. 5541--A 5 1 or trainer who has been found to have violated this section, the fund 2 shall be entitled to an award against such owner or trainer for the 3 amount so paid which shall be collected in the same manner as an award 4 of compensation. 5 S 8. Section 18-a of the workers' compensation law, as amended by 6 chapter 169 of the laws of 2007, is amended to read as follows: 7 S 18-a. Notice: The New York Jockey Injury Compensation Fund, Inc. 8 Wherever in this chapter it shall be required that notice be given to an 9 employer, except for claims involving section fourteen-a of the workers' 10 compensation law such notice requirement shall be deemed satisfied by 11 giving notice to the New York Jockey Injury Compensation Fund, Inc., in 12 connection with an injury to a jockey, apprentice jockey or exercise 13 person licensed under article two or four of the racing, pari-mutuel 14 wagering and breeding law who, pursuant to section two of this chapter, 15 is an employee of all owners and trainers licensed or required to be 16 licensed under article two or four of the racing, pari-mutuel wagering 17 and breeding law and of the fund WHERE THE ELECTION HAS BEEN MADE BY THE 18 NEW YORK JOCKEY INJURY COMPENSATION FUND, INC. TO PROVIDE WORKERS' 19 COMPENSATION TO ALL JOCKEYS, APPRENTICE JOCKEYS AND EXERCISE PERSONS. In 20 a claim involving section fourteen-a of the workers' compensation law 21 AND WHERE SUCH ELECTION HAS BEEN MADE TO PROVIDE WORKERS' COMPENSATION 22 ONLY TO JOCKEYS AND APPRENTICE JOCKEYS, such required notice shall be 23 given to the employing owner and/or trainer of the fund. 24 S 9. Subdivision 8 of section 50 of the workers' compensation law, as 25 amended by chapter 169 of the laws of 2007, is amended to read as 26 follows: 27 8. [The] WHERE THE ELECTION MADE BY THE NEW YORK JOCKEY INJURY COMPEN- 28 SATION FUND, INC. IS TO PROVIDE WORKERS' COMPENSATION FOR JOCKEYS, 29 APPRENTICE JOCKEYS AND EXERCISE PERSONS, THE requirements of section ten 30 of this chapter regarding the provision of workers' compensation insur- 31 ance as to owners and trainers governed by the racing, pari-mutuel 32 wagering and breeding law who are employers under section two of this 33 chapter are satisfied in full by compliance with the requirements 34 imposed upon owners and trainers by section two hundred [thirteen-a] 35 TWENTY-ONE of the racing, pari-mutuel wagering and breeding law, 36 provided that in the event double compensation, death benefits, or 37 awards are payable with respect to an injured employee under section 38 fourteen-a of this chapter, the owner or trainer for whom the injured 39 jockey, apprentice jockey or exercise person licensed under article two 40 or four of the racing, pari-mutuel wagering and breeding law is perform- 41 ing services as a jockey, apprentice jockey or exercise person so 42 licensed at the time of the accident shall bear the sole responsibility 43 for the amount payable pursuant to such section fourteen-a in excess of 44 the amount otherwise payable under this chapter, unless there shall be a 45 failure of the responsible owner or trainer to pay such award within the 46 time provided under this chapter. In the event of such failure to pay 47 and the board requires the fund to pay the award on behalf of such owner 48 or trainer who has been found to have violated section fourteen-a OF 49 THIS CHAPTER, the fund shall be entitled to an award against such owner 50 or trainer for the amount so paid which shall be collected in the same 51 manner as an award of compensation. Coverage directly procured by any 52 owner or trainer for the purpose of satisfying the requirements of this 53 chapter with respect to employees of the owner or trainer shall not 54 include coverage on any jockey, apprentice jockey or exercise person 55 licensed under article two or four of the racing, pari-mutuel wagering 56 and breeding law to the extent that such jockey, apprentice jockey or S. 5541--A 6 1 exercise person is also covered under coverage procured by The New York 2 Jockey Injury Compensation Fund, Inc. pursuant to the requirements of 3 section two hundred [thirteen-a] TWENTY-ONE of the racing, pari-mutuel 4 wagering and breeding law, and to that extent, coverage procured by the 5 fund pursuant to the requirements of the racing, pari-mutuel wagering 6 and breeding law shall be considered primary. 7 S 10. This act shall take effect immediately.