Bill Text: NY S08735 | 2021-2022 | General Assembly | Amended
Bill Title: Expands eligibility for temporary disability insurance and paid family leave benefits; makes conforming technical changes.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2022-11-04 - PRINT NUMBER 8735A [S08735 Detail]
Download: New_York-2021-S08735-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 8735--A IN SENATE April 5, 2022 ___________ Introduced by Sens. RAMOS, ADDABBO -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- commit- tee discharged, bill amended, ordered reprinted as amended and recom- mitted to said committee AN ACT to amend the workers' compensation law, in relation to expanding eligibility for temporary disability insurance and paid family leave benefits and to making certain conforming technical changes The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 9 of section 201 of the workers' compensation 2 law, as amended by chapter 675 of the laws of 1977, paragraph B as 3 amended by chapter 352 of the laws of 1981, is amended to read as 4 follows: 5 9. [A.] (a) "Disability" during employment means the inability of an 6 employee, as a result of injury or sickness not arising out of and in 7 the course of an employment, to perform the regular duties of his or her 8 employment or the duties of any other employment which his or her 9 employer may offer him or her at his or her regular wages and which his 10 or her injury or sickness does not prevent him or her from performing. 11 "Disability" during unemployment means the inability of an employee, as 12 a result of injury or sickness not arising out of and in the course of 13 an employment, to perform the duties of any employment for which he or 14 she is reasonably qualified by training and experience. 15 [B.] (b) "Disability" also includes disability caused by or in 16 connection with a pregnancy. 17 (c) "Disability" also includes the inability of an employee to work in 18 order to receive medical treatment for a serious health condition not 19 arising out of and in the course of employment. 20 § 2. Subdivision 20 of section 201 of the workers' compensation law, 21 as amended by chapter 550 of the laws of 2021, is amended to read as 22 follows: 23 20. "Family member" means a child, parent, grandparent, grandchild, 24 sibling, spouse, or domestic partner as defined in this section, or any EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14521-03-2S. 8735--A 2 1 other individual related by blood to the employee or whose close associ- 2 ation with the employee is the equivalent of a family relationship. 3 § 3. Section 203 of the workers' compensation law, as amended by 4 section 3 of part SS of chapter 54 of the laws of 2016, is amended to 5 read as follows: 6 § 203. Employees eligible for benefits under section two hundred four 7 of this article. Employees in employment of a covered employer for four 8 or more consecutive weeks and employees in employment during the work 9 period usual to and available during such four or more consecutive weeks 10 in any trade or business in which they are regularly employed and in 11 which hiring from day to day of such employees is the usual employment 12 practice shall be eligible for disability and family leave benefits as 13 provided in section two hundred four of this article. [Employees in14employment of a covered employer for twenty-six or more consecutive15weeks and employees in employment during the work period usual to and16available during such twenty-six or more consecutive weeks in any trade17or business in which they are regularly employed and in which hiring18from day to day of such employees is the usual employment practice shall19be eligible for family leave benefits as provided in section two hundred20four of this article. Every such employee shall continue to be eligible21for family leave benefits only during employment with a covered employ-22er.] Every such employee shall continue to be eligible for disability 23 and family leave benefits during such employment and for a period of 24 four weeks after such employment terminates regardless of whether the 25 employee performs any work for remuneration or profit in non-covered 26 employment. If during such four week period the employee performs any 27 work for remuneration or profit for another covered employer the employ- 28 ee shall become eligible for disability and family leave benefits imme- 29 diately with respect to that employment. In addition every such employee 30 who has previously completed four or more consecutive weeks in employ- 31 ment with the covered employer for purposes of disability and family 32 leave benefits[, or twenty-six or more consecutive weeks in employment33with the covered employer for purposes of paid family leave,] and 34 returns to work with the same employer after an agreed and specified 35 unpaid leave of absence or vacation without pay shall become eligible 36 for benefits immediately with respect to such employment. An employee 37 who during a period in which he or she is eligible to receive benefits 38 under subdivision two of section two hundred seven of this article 39 returns to employment with a covered employer and an employee who is 40 currently receiving unemployment insurance benefits or benefits under 41 section two hundred seven of this article and who returns to employment 42 with a covered employer shall become eligible for disability and family 43 leave benefits immediately with respect to such employment. An employee 44 regularly in the employment of a single employer on a work schedule less 45 than the employer's normal work week shall become eligible for disabili- 46 ty and family leave benefits on the twenty-fifth day of such regular 47 employment [and for purposes of paid family leave an employer shall48become eligible for benefits on the one hundred seventy-fifth day of49such regular employment]. An employee who is eligible for disability and 50 family leave benefits in the employment of a covered employer shall not 51 be deemed, for the purposes of this article, to have such employment 52 terminated during any period he or she is eligible to receive benefits 53 under section two hundred four of this article with respect to such 54 employment.S. 8735--A 3 1 § 4. Section 203-a of the workers' compensation law, as added by 2 section 4 of part SS of chapter 54 of the laws of 2016, is amended to 3 read as follows: 4 § 203-a. Retaliatory action prohibited for disability and family 5 leave. 1. The provisions of section one hundred twenty of this chapter 6 and section two hundred forty-one of this article shall be applicable to 7 disability and family leave. 8 2. Nothing in this section shall be deemed to diminish the rights, 9 privileges, or remedies of any employee under any collective bargaining 10 agreement or employment contract. 11 § 5. Section 203-b of the workers' compensation law, as added by 12 section 4 of part SS of chapter 54 of the laws of 2016, is amended to 13 read as follows: 14 § 203-b. Reinstatement following disability or family leave. Any 15 eligible employee of a covered employer who takes leave, including leave 16 due to a disability, under this article shall be entitled, on return 17 from such leave, to be restored by the employer to the position of 18 employment held by the employee when the leave commenced, or to be 19 restored to a comparable position with comparable employment benefits, 20 pay and other terms and conditions of employment. The taking of family 21 leave or leave due to a disability shall not result in the loss of any 22 employment benefit accrued prior to the date on which the leave 23 commenced. Nothing in this section shall be construed to entitle any 24 restored employee to the accrual of any seniority or employment benefits 25 during any period of leave, or any right, benefit or position to which 26 the employee would have been entitled had the employee not taken the 27 leave. 28 § 6. Section 203-c of the workers' compensation law, as added by 29 section 4 of part SS of chapter 54 of the laws of 2016, is amended to 30 read as follows: 31 § 203-c. Health insurance during disability or family leave. In 32 accordance with the Family and Medical Leave Act (29 U.S.C. §§ 33 2601-2654), during any period of disability or family leave the employer 34 shall maintain any existing health benefits of the employee in force for 35 the duration of such leave as if the employee had continued to work from 36 the date he or she commenced disability or family leave until the date 37 he or she returns to employment. 38 § 7. Subdivision 2 of section 204 of the workers' compensation law, as 39 amended by section 5 of part SS of chapter 54 of the laws of 2016, is 40 amended to read as follows: 41 2. (a) The weekly benefit for family leave that occurs (i) on or after 42 January first, two thousand eighteen shall not exceed eight weeks during 43 any fifty-two week calendar period and shall be fifty percent of the 44 employee's average weekly wage but shall not exceed fifty percent of the 45 state average weekly wage, (ii) on or after January first, two thousand 46 nineteen shall not exceed ten weeks during any fifty-two week calendar 47 period and shall be fifty-five percent of the employee's average weekly 48 wage but shall not exceed fifty-five percent of the state average weekly 49 wage, (iii) on or after January first, two thousand twenty shall not 50 exceed ten weeks during any fifty-two week calendar period and shall be 51 sixty percent of the employee's average weekly wage but shall not exceed 52 sixty percent of the state average weekly wage, [and] (iv) on or after 53 January first [of each succeeding year], two thousand twenty-one shall 54 not exceed twelve weeks during any fifty-two week calendar period and 55 shall be sixty-seven percent of the employee's average weekly wage but 56 shall not exceed sixty-seven percent of the New York state average week-S. 8735--A 4 1 ly wage in effect, and (v) on or after January first, two thousand twen- 2 ty-four, shall not exceed twelve weeks during any fifty-two week calen- 3 dar period and shall be ninety percent of the portion of the employee's 4 average weekly wage that is equal to or less than fifty percent of the 5 New York state average weekly wage in effect and sixty-seven percent of 6 the portion of the employee's average weekly wage that is more than 7 fifty percent of the New York state average weekly wage in effect but 8 shall not exceed sixty-seven percent of the New York state average week- 9 ly wage in effect. The superintendent of financial services shall have 10 discretion to delay the increases in the family leave benefit level 11 provided in subparagraphs (ii), (iii), [and] (iv), and (v) of this para- 12 graph by one or more calendar years. In determining whether to delay the 13 increase in the family leave benefit for any year, the superintendent of 14 financial services shall consider: (1) the current cost to employees of 15 the family leave benefit and any expected change in the cost after the 16 benefit increase; (2) the current number of insurers issuing insurance 17 policies with a family leave benefit and any expected change in the 18 number of insurers issuing such policies after the benefit increase; (3) 19 the impact of the benefit increase on employers' business and the over- 20 all stability of the program to the extent that information is readily 21 available; (4) the impact of the benefit increase on the financial 22 stability of the disability and family leave insurance market and carri- 23 ers; and (5) any additional factors that the superintendent of financial 24 services deems relevant. If the superintendent of financial services 25 delays the increase in the family leave benefit level for one or more 26 calendar years, the family leave benefit level that shall take effect 27 immediately following the delay shall be the same benefit level that 28 would have taken effect but for the delay. The weekly benefits for fami- 29 ly leave that occurs on or after January first, two thousand eighteen 30 shall not be less than one hundred dollars per week except that if the 31 employee's wages at the time of family leave are less than one hundred 32 dollars per week, the employee shall receive his or her full wages. 33 Benefits may be payable to employees for paid family leave taken inter- 34 mittently or for less than a full work week in increments of one full 35 day or one fifth of the weekly benefit. 36 (b) The weekly benefit which the disabled employee is entitled to 37 receive for disability commencing on or after January first, two thou- 38 sand twenty-four shall be ninety percent of the portion of the employ- 39 ee's average weekly wage that is equal to or less than fifty percent of 40 the New York state average weekly wage in effect and sixty-seven percent 41 of the portion of the employee's average weekly wage that is more than 42 fifty percent of the New York state average weekly wage in effect but 43 shall not exceed sixty-seven percent of the New York state average week- 44 ly wage in effect; except that if the employee's average weekly wage is 45 less than one hundred dollars, the benefit shall be such average weekly 46 wage. The weekly benefit which the disabled employee is entitled to 47 receive for disability commencing on or after May first, nineteen 48 hundred eighty-nine shall be one-half of the employee's weekly wage, but 49 in no case shall such benefit exceed one hundred seventy dollars; except 50 that if the employee's average weekly wage is less than twenty dollars, 51 the benefit shall be such average weekly wage. The weekly benefit which 52 the disabled employee is entitled to receive for disability commencing 53 on or after July first, nineteen hundred eighty-four shall be one-half 54 of the employee's weekly wage, but in no case shall such benefit exceed 55 one hundred forty-five dollars; except that if the employee's average 56 weekly wage is less than twenty dollars, the benefit shall be such aver-S. 8735--A 5 1 age weekly wage. The weekly benefit which the disabled employee is enti- 2 tled to receive for disability commencing on or after July first, nine- 3 teen hundred eighty-three and prior to July first, nineteen hundred 4 eighty-four shall be one-half of the employee's average weekly wage, but 5 in no case shall such benefit exceed one hundred thirty-five dollars nor 6 be less than twenty dollars; except that if the employee's average week- 7 ly wage is less than twenty dollars the benefit shall be such average 8 weekly wage. The weekly benefit which the disabled employee is entitled 9 to receive for disability commencing on or after July first, nineteen 10 hundred seventy-four, and prior to July first, nineteen hundred eighty- 11 three, shall be one-half of the employee's average weekly wage, but in 12 no case shall such benefit exceed ninety-five dollars nor be less than 13 twenty dollars; except that if the employee's average weekly wage is 14 less than twenty dollars, the benefit shall be such average weekly wage. 15 The weekly benefit which the disabled employee is entitled to receive 16 for disability commencing on or after July first, nineteen hundred 17 seventy and prior to July first, nineteen hundred seventy-four shall be 18 one-half of the employee's average weekly wage, but in no case shall 19 such benefit exceed seventy-five dollars nor be less than twenty 20 dollars; except that if the employee's average weekly wage is less than 21 twenty dollars the benefit shall be such average weekly wage. For any 22 period of disability less than a full week, the benefits payable shall 23 be calculated by dividing the weekly benefit by the number of the 24 employee's normal work days per week and multiplying the quotient by the 25 number of normal work days in such period of disability. The weekly 26 benefit for a disabled employee who is concurrently eligible for bene- 27 fits in the employment of more than one covered employer shall, within 28 the maximum and minimum herein provided, be (i) one-half of the total of 29 the employee's average weekly wages received from all such covered 30 employers, or (ii) for disability commencing on or after January first, 31 two thousand twenty-four, ninety percent of the portion of the employ- 32 ee's average weekly wage received from all such covered employers that 33 is equal to or less than fifty percent of the New York state average 34 weekly wage in effect and sixty-seven percent of the portion of the 35 employee's average weekly wage received from all such covered employers 36 that is more than fifty percent of the New York state average weekly 37 wage in effect, and shall be allocated in the proportion of their 38 respective average weekly wage payments. 39 § 8. Section 207 of the workers' compensation law, as added by chap- 40 ter 600 of the laws of 1949, subdivisions 1 and 2 as amended by chapter 41 438 of the laws of 1964, subdivision 4 as amended by chapter 436 of the 42 laws of 1986, and subdivision 5 as added by section 8 of part SS of 43 chapter 54 of the laws of 2016, is amended to read as follows: 44 § 207. Disability while unemployed. 1. Employees entitled to unemploy- 45 ment insurance benefits. An employee whose employment with a covered 46 employer is terminated and who during a period of unemployment within 47 twenty-six weeks immediately following such termination of employment 48 shall become ineligible for benefits currently being claimed under the 49 unemployment insurance law solely because of disability commencing after 50 June thirtieth, nineteen hundred fifty or need for family leave commenc- 51 ing after January first, two thousand twenty-four, and who on the day 52 such disability or need for family leave commences is not employed or 53 working for remuneration or profit and is not then otherwise eligible 54 for benefits under this article, shall be entitled to receive disability 55 or family leave benefits as herein provided for each week of such disa- 56 bility or need for family leave for which week he or she would haveS. 8735--A 6 1 received unemployment insurance benefits if he or she were not so disa- 2 bled or did not have such need for family leave. The weekly benefit of 3 such [disabled] employee shall be computed in the same manner as 4 provided in subdivision two of section two hundred four of this article, 5 and the benefits he or she is entitled to receive shall be subject to 6 the limitations as to maximum and minimum amounts and duration and other 7 conditions and limitations prescribed in sections two hundred four, two 8 hundred five and two hundred six of this article. 9 2. Employees not eligible for unemployment insurance benefits. An 10 employee whose employment with a covered employer is terminated and who 11 was in employment of one or more covered employers and was paid wages of 12 at least thirteen dollars in such employment in each of twenty calendar 13 weeks during the thirty calendar weeks immediately preceding the date he 14 or she last worked for such covered employer, and who during a period of 15 unemployment within twenty-six weeks immediately following such termi- 16 nation of employment is not eligible to benefits under the unemployment 17 insurance law because of lack of qualifying wages but who during unem- 18 ployment has evidenced his or her continued attachment to the labor 19 market, shall be eligible for benefits under the provisions of this 20 subdivision for disability commencing after June thirtieth, nineteen 21 hundred fifty or need for family leave commencing after January first, 22 two thousand twenty-four. If such employee becomes disabled and contin- 23 ues to be disabled for at least eight consecutive days during such twen- 24 ty-six week period and on the day such disability commences he or she is 25 not employed or working for remuneration or profit and is not then 26 otherwise eligible for benefits under this article, he or she shall be 27 entitled to receive disability benefits, as herein provided, beginning 28 with the eighth consecutive day of such disability, for each week of 29 such disability thereafter. If such employee has a need for family leave 30 during such twenty-six week period and on the day such family leave 31 commences such person is not employed or working for remuneration or 32 profit and is not then otherwise eligible for benefits under this arti- 33 cle, such person shall be entitled to receive family leave benefits, as 34 herein provided for each week of such family leave thereafter. The week- 35 ly benefit of such [disabled] employee shall be computed in the same 36 manner as provided in subdivision two of section two hundred four of 37 this article, and the benefits he or she is entitled to receive shall be 38 subject to the limitations as to maximum and minimum amounts and dura- 39 tion and other conditions and limitations prescribed in sections two 40 hundred four, two hundred five and two hundred six of this article. 41 3. Payment of benefits. The benefits payable under this section shall 42 be subject to the provisions and limitations generally applicable to 43 disability and family leave benefits payable under this article, and 44 shall be paid by the [chairman] chair out of any assets in the fund 45 created by section two hundred fourteen of this article. The [chairman] 46 chair may require an employee claiming benefits under this section to 47 file proofs of disability or need for family leave and of his or her 48 employment and wages, and other proofs reasonably necessary for the 49 [chairman] chair to make in the first instance the determination of 50 eligibility and benefit rights under this section; and may require his 51 or her employer or his or her former employer or employers to file 52 reports of employment and wages and other information reasonably neces- 53 sary for such determination. The [chairman] chair may make administra- 54 tive regulations for such determinations. The [chairman] chair may also 55 by regulation establish reasonable procedures for determining pro rata 56 benefits payable with respect to disability or family leave periods ofS. 8735--A 7 1 less than one week. Any employee claiming benefits under this section 2 whose claim is rejected in whole or in part by the [chairman] chair, 3 shall be entitled to request a review by the board and shall have all 4 the rights with respect to contested claims provided in this article. 5 4. Qualification notwithstanding casual non-covered employment. An 6 employment of not more than four weeks with a non-covered employer or 7 employers occurring within such twenty-six weeks period shall not 8 disqualify an employee from benefits provided such employee was other- 9 wise eligible to receive benefits under this section at the time such 10 employment for a non-covered employer commenced. 11 [5. The foregoing provisions of this section shall not apply to family12leave benefits, as family leave benefits are not available to employees13that are not employed at the time family leave is requested by filing14the notice and medical certification required by the chair.] 15 § 9. Paragraph (b) of subdivision 4 of section 212 of the workers' 16 compensation law, as added by section 13 of part SS of chapter 54 of the 17 laws of 2016, is amended to read as follows: 18 (b) Notwithstanding the definition of "employer" in section two 19 hundred one of this article, a sole proprietor, member of a limited 20 liability company or limited liability partnership, or other self-em- 21 ployed person may become a covered employer under this article for a 22 period of at least one year by complying with the provisions of subdivi- 23 sion one of this section. A self-employed person who becomes a covered 24 employer under this section shall become eligible for disability and 25 family leave benefits no later than four weeks after the purchase of a 26 policy of insurance under this article. 27 § 10. Subdivision 2 of section 2 of the workers' compensation law, as 28 amended by chapter 717 of the laws of 2021, is amended to read as 29 follows: 30 2. (a) "Department" means the department of labor of the state of New 31 York; 32 (b) "Chairman" or "chair" means the [chairman] chair of the workers' 33 compensation board of the state of New York; 34 (c) "Commissioner" means the industrial commissioner of the state of 35 New York; 36 (d) "Board" means the workers' compensation board of the state of New 37 York; 38 (e) "Commissioners" means the commissioners of the state insurance 39 fund of the department of labor of the state of New York. 40 § 11. Subdivision 2 of section 201 of the workers' compensation law, 41 as amended by chapter 717 of the laws of 2021, is amended to read as 42 follows: 43 2. "Chairman" or "chair" means the [chairman] chair of the workers' 44 compensation board of the state of New York. 45 § 12. Subdivision 6 of section 302 of the workers' compensation law, 46 as amended by chapter 717 of the laws of 2021, is amended to read as 47 follows: 48 6. "Chairman" shall mean the [chairman] chair of the workers' compen- 49 sation board. 50 § 13. Severability. If any clause, sentence, paragraph, subdivi- 51 sion, section or part of this act shall be adjudged by any court of 52 competent jurisdiction to be invalid, such judgment shall not affect, 53 impair, or invalidate the remainder thereof, but shall be confined in 54 its operation to the clause, sentence, paragraph, subdivision, section 55 or part thereof directly involved in the controversy in which 56 such judgment shall have been rendered. It is hereby declared to be theS. 8735--A 8 1 intent of the legislature that this act would have been enacted even if 2 such invalid provisions had not been included herein. 3 § 14. This act shall take effect on the sixtieth day after it shall 4 have become a law; provided, however, that the amendments to subdivision 5 20 of section 201 of the workers' compensation law made by section two 6 of this act shall take effect on the same date and in the same manner as 7 section 2 of chapter 550 of the laws of 2021 takes effect. Effective 8 immediately, the addition, amendment and/or repeal of any rule or 9 regulation necessary for the implementation of this act on its effective 10 date are authorized to be made and completed on or before such effec- 11 tive date.
