Bill Text: NY S08735 | 2021-2022 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          8735

                    IN SENATE

                                      April 5, 2022
                                       ___________

        Introduced  by  Sen.  RAMOS  -- 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  expand
          eligibility  for  temporary disability insurance and paid family leave
          benefits

          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 is amended by adding a new paragraph C to read as follows:
     3    C. "Disability" also includes the inability of an employee to work  in
     4  order  to  receive  medical treatment for a serious health condition not
     5  arising out of and in the course of employment.
     6    § 2.  Section 203 of the workers'  compensation  law,  as  amended  by
     7  section  3  of  part SS of chapter 54 of the laws of 2016, is amended to
     8  read as follows:
     9    § 203. Employees eligible for benefits under section two hundred  four
    10  of  this article. Employees in employment of a covered employer for four
    11  or more consecutive weeks and employees in employment  during  the  work
    12  period usual to and available during such four or more consecutive weeks
    13  in  any  trade  or  business in which they are regularly employed and in
    14  which hiring from day to day of such employees is the  usual  employment
    15  practice  shall  be eligible for disability and family leave benefits as
    16  provided in section two hundred four  of  this  article.  [Employees  in
    17  employment  of  a  covered  employer  for twenty-six or more consecutive
    18  weeks and employees in employment during the work period  usual  to  and
    19  available  during such twenty-six or more consecutive weeks in any trade
    20  or business in which they are regularly employed  and  in  which  hiring
    21  from day to day of such employees is the usual employment practice shall
    22  be eligible for family leave benefits as provided in section two hundred
    23  four of this article.  Every such employee shall continue to be eligible
    24  for  family leave benefits only during employment with a covered employ-
    25  er.] Every such employee shall continue to be  eligible  for  disability
    26  and  family  leave  benefits  during such employment and for a period of
    27  four weeks after such employment terminates regardless  of  whether  the

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14521-01-2
        S. 8735                             2

     1  employee  performs  any  work  for remuneration or profit in non-covered
     2  employment. If during such four week period the  employee  performs  any
     3  work for remuneration or profit for another covered employer the employ-
     4  ee  shall become eligible for disability and family leave benefits imme-
     5  diately with respect to that employment. In addition every such employee
     6  who has previously completed four or more consecutive weeks  in  employ-
     7  ment  with  the  covered  employer for purposes of disability and family
     8  leave benefits[, or twenty-six or more consecutive weeks  in  employment
     9  with  the  covered  employer  for  purposes  of  paid family leave,] and
    10  returns to work with the same employer after  an  agreed  and  specified
    11  unpaid  leave  of  absence or vacation without pay shall become eligible
    12  for benefits immediately with respect to such  employment.  An  employee
    13  who  during  a period in which he or she is eligible to receive benefits
    14  under subdivision two of section  two  hundred  seven  of  this  article
    15  returns  to  employment  with  a covered employer and an employee who is
    16  currently receiving unemployment insurance benefits  or  benefits  under
    17  section  two hundred seven of this article and who returns to employment
    18  with a covered employer shall become eligible for disability and  family
    19  leave  benefits immediately with respect to such employment. An employee
    20  regularly in the employment of a single employer on a work schedule less
    21  than the employer's normal work week shall become eligible for disabili-
    22  ty leave benefits on the twenty-fifth day  of  such  regular  employment
    23  [and for purposes of paid family leave an employer shall become eligible
    24  for  benefits  on  the  one  hundred  seventy-fifth  day of such regular
    25  employment]. An employee who is eligible for disability and family leave
    26  benefits in the employment of a covered employer shall  not  be  deemed,
    27  for  the  purposes  of  this article, to have such employment terminated
    28  during any period he or  she  is  eligible  to  receive  benefits  under
    29  section  two  hundred  four of this article with respect to such employ-
    30  ment.
    31    § 3. Section 203-a of the  workers'  compensation  law,  as  added  by
    32  section  4  of  part SS of chapter 54 of the laws of 2016, is amended to
    33  read as follows:
    34    § 203-a. Retaliatory  action  prohibited  for  disability  and  family
    35  leave.  1.  The provisions of section one hundred twenty of this chapter
    36  and section two hundred forty-one of this article shall be applicable to
    37  disability and family leave.
    38    2. Nothing in this section shall be deemed  to  diminish  the  rights,
    39  privileges,  or remedies of any employee under any collective bargaining
    40  agreement or employment contract.
    41    § 4. Section 203-b of the  workers'  compensation  law,  as  added  by
    42  section  4  of  part SS of chapter 54 of the laws of 2016, is amended to
    43  read as follows:
    44    § 203-b. Reinstatement  following  disability  or  family  leave.  Any
    45  eligible employee of a covered employer who takes leave, including leave
    46  due  to  a  disability,  under this article shall be entitled, on return
    47  from such leave, to be restored by  the  employer  to  the  position  of
    48  employment  held  by  the  employee  when  the leave commenced, or to be
    49  restored to a comparable position with comparable  employment  benefits,
    50  pay  and  other terms and conditions of employment. The taking of family
    51  leave or leave due to a disability shall not result in the loss  of  any
    52  employment  benefit  accrued  prior  to  the  date  on  which  the leave
    53  commenced. Nothing in this section shall be  construed  to  entitle  any
    54  restored employee to the accrual of any seniority or employment benefits
    55  during  any  period of leave, or any right, benefit or position to which
        S. 8735                             3

     1  the employee would have been entitled had the  employee  not  taken  the
     2  leave.
     3    §  5.    Section  203-c  of the workers' compensation law, as added by
     4  section 4 of part SS of chapter 54 of the laws of 2016,  is  amended  to
     5  read as follows:
     6    §  203-c. Health  insurance  during disability oroff; family leave. In
     7  accordance  with  the  Family  and  Medical  Leave  Act  (29  U.S.C.  §§
     8  2601-2654), during any period of disability or family leave the employer
     9  shall maintain any existing health benefits of the employee in force for
    10  the duration of such leave as if the employee had continued to work from
    11  the  date  he or she commenced disability or family leave until the date
    12  he or she returns to employment.
    13    § 6. Paragraph (b) of subdivision 2 of section  204  of  the  workers'
    14  compensation  law,  as  amended by section 5 of part SS of chapter 54 of
    15  the laws of 2016, is amended to read as follows:
    16    (b)  The weekly benefit which the disabled  employee  is  entitled  to
    17  receive  for  disability commencing on or after January first, two thou-
    18  sand twenty-three shall be sixty-seven percent of the employee's average
    19  weekly wage but shall not exceed sixty-seven percent  of  the  New  York
    20  state average weekly wage in effect; except that if the employee's aver-
    21  age  weekly  wage is less than one hundred dollars, the benefit shall be
    22  such average weekly wage. The weekly benefit which the disabled employee
    23  is entitled to receive for disability commencing on or after May  first,
    24  nineteen  hundred eighty-nine shall be one-half of the employee's weekly
    25  wage, but in no case shall  such  benefit  exceed  one  hundred  seventy
    26  dollars;  except that if the employee's average weekly wage is less than
    27  twenty dollars, the benefit shall be such average weekly wage. The week-
    28  ly benefit which the disabled employee is entitled to receive for  disa-
    29  bility  commencing  on or after July first, nineteen hundred eighty-four
    30  shall be one-half of the employee's weekly wage, but in  no  case  shall
    31  such  benefit  exceed one hundred forty-five dollars; except that if the
    32  employee's average weekly wage is less than twenty dollars, the  benefit
    33  shall be such average weekly wage. The weekly benefit which the disabled
    34  employee  is  entitled  to receive for disability commencing on or after
    35  July first, nineteen hundred eighty-three and prior to July first, nine-
    36  teen hundred eighty-four shall be one-half  of  the  employee's  average
    37  weekly  wage, but in no case shall such benefit exceed one hundred thir-
    38  ty-five dollars nor be less than twenty  dollars;  except  that  if  the
    39  employee's  average  weekly wage is less than twenty dollars the benefit
    40  shall be such average weekly wage. The weekly benefit which the disabled
    41  employee is entitled to receive for disability commencing  on  or  after
    42  July  first,  nineteen  hundred  seventy-four,  and prior to July first,
    43  nineteen hundred eighty-three, shall be one-half of the employee's aver-
    44  age weekly wage, but in no case shall such  benefit  exceed  ninety-five
    45  dollars  nor  be less than twenty dollars; except that if the employee's
    46  average weekly wage is less than twenty dollars, the  benefit  shall  be
    47  such average weekly wage. The weekly benefit which the disabled employee
    48  is entitled to receive for disability commencing on or after July first,
    49  nineteen  hundred  seventy  and  prior  to  July first, nineteen hundred
    50  seventy-four shall be one-half of the employee's  average  weekly  wage,
    51  but  in  no  case  shall such benefit exceed seventy-five dollars nor be
    52  less than twenty dollars; except that if the employee's  average  weekly
    53  wage is less than twenty dollars the benefit shall be such average week-
    54  ly  wage.  For any period of disability less than a full week, the bene-
    55  fits payable shall be calculated by dividing the weekly benefit  by  the
    56  number  of  the employee's normal work days per week and multiplying the
        S. 8735                             4

     1  quotient by the number of normal work days in such period of disability.
     2  The weekly benefit for a disabled employee who is concurrently  eligible
     3  for  benefits in the employment of more than one covered employer shall,
     4  within the maximum and minimum herein provided, be one-half of the total
     5  of  the  employee's  average weekly wages received from all such covered
     6  employers, and shall be allocated in the proportion of their  respective
     7  average weekly wage payments.
     8    §  7.  Section 207 of the workers' compensation law, as added by chap-
     9  ter 600 of the laws of 1949, subdivisions 1 and 2 as amended by  chapter
    10  438  of the laws of 1964, subdivision 4 as amended by chapter 436 of the
    11  laws of 1986, and subdivision 5 as added by section  8  of  part  SS  of
    12  chapter 54 of the laws of 2016, is amended to read as follows:
    13    § 207. Disability while unemployed. 1. Employees entitled to unemploy-
    14  ment  insurance  benefits.  An  employee whose employment with a covered
    15  employer is terminated and who during a period  of  unemployment  within
    16  twenty-six  weeks  immediately  following such termination of employment
    17  shall become ineligible for benefits currently being claimed  under  the
    18  unemployment insurance law solely because of disability commencing after
    19  June thirtieth, nineteen hundred fifty or need for family leave commenc-
    20  ing  after  January first, two thousand twenty-three, and who on the day
    21  such disability or need for family leave commences is  not  employed  or
    22  working  for  remuneration  or profit and is not then otherwise eligible
    23  for benefits under this article, shall be entitled to receive disability
    24  or family leave benefits as herein provided for each week of such  disa-
    25  bility  or  need  for family leave for which week he would have received
    26  unemployment insurance benefits if he or she were not so disabled or did
    27  not have such need for family leave.  The weekly benefit of such  [disa-
    28  bled]  employee  shall  be  computed  in  the same manner as provided in
    29  subdivision two of section two hundred four of  this  article,  and  the
    30  benefits  he or she is entitled to receive shall be subject to the limi-
    31  tations as to maximum and minimum amounts and duration and other  condi-
    32  tions  and  limitations  prescribed  in  sections  two hundred four, two
    33  hundred five and two hundred six of this article.
    34    2. Employees not eligible  for  unemployment  insurance  benefits.  An
    35  employee  whose employment with a covered employer is terminated and who
    36  was in employment of one or more covered employers and was paid wages of
    37  at least thirteen dollars in such employment in each of twenty  calendar
    38  weeks during the thirty calendar weeks immediately preceding the date he
    39  or she last worked for such covered employer, and who during a period of
    40  unemployment  within  twenty-six weeks immediately following such termi-
    41  nation of employment is not eligible to benefits under the  unemployment
    42  insurance  law  because of lack of qualifying wages but who during unem-
    43  ployment has evidenced his or her  continued  attachment  to  the  labor
    44  market,  shall  be  eligible  for  benefits under the provisions of this
    45  subdivision for disability commencing  after  June  thirtieth,  nineteen
    46  hundred  fifty  or need for family leave commencing after January first,
    47  two thousand twenty-three.    If  such  employee  becomes  disabled  and
    48  continues to be disabled for at least eight consecutive days during such
    49  twenty-six  week  period  and on the day such disability commences he or
    50  she is not employed or working for remuneration or  profit  and  is  not
    51  then otherwise eligible for benefits under this article, he or she shall
    52  be  entitled  to receive disability benefits, as herein provided, begin-
    53  ning with the eighth consecutive day of such disability, for  each  week
    54  of  such  disability  thereafter. If such employee has a need for family
    55  leave during such twenty-six week period and  on  the  day  such  family
    56  leave  commences such person is not employed or working for remuneration
        S. 8735                             5

     1  or profit and is not then otherwise eligible  for  benefits  under  this
     2  article, such person shall be entitled to receive family leave benefits,
     3  as  herein  provided  for each week of such family leave thereafter. The
     4  weekly benefit of such [disabled] employee shall be computed in the same
     5  manner  as  provided  in  subdivision two of section two hundred four of
     6  this article, and the benefits he or she is entitled to receive shall be
     7  subject to the limitations as to maximum and minimum amounts  and  dura-
     8  tion  and  other  conditions  and limitations prescribed in sections two
     9  hundred four, two hundred five and two hundred six of this article.
    10    3. Payment of benefits. The benefits payable under this section  shall
    11  be  subject  to  the  provisions and limitations generally applicable to
    12  disability and family leave benefits payable  under  this  article,  and
    13  shall  be  paid by the chairman out of any assets in the fund created by
    14  section two hundred fourteen.  The  chairman  may  require  an  employee
    15  claiming  benefits  under  this  section to file proofs of disability or
    16  need for family leave and of his or her employment and wages, and  other
    17  proofs  reasonably  necessary  for  the  chairman  to  make in the first
    18  instance the determination of eligibility and benefit rights under  this
    19  section;  and  may  require  his  or  her  employer or his or her former
    20  employer or employers to file reports of employment and wages and  other
    21  information  reasonably  necessary  for such determination. The chairman
    22  may make administrative regulations for such determinations. The  chair-
    23  man may also by regulation establish reasonable procedures for determin-
    24  ing pro rata benefits payable with respect to disability or family leave
    25  periods of less than one week. Any employee claiming benefits under this
    26  section  whose  claim  is  rejected in whole or in part by the chairman,
    27  shall be entitled to request a review by the board and  shall  have  all
    28  the rights with respect to contested claims provided in this article.
    29    4.  Qualification  notwithstanding  casual  non-covered employment. An
    30  employment of not more than four weeks with a  non-covered  employer  or
    31  employers  occurring  within  such  twenty-six  weeks  period  shall not
    32  disqualify an employee from benefits provided such employee  was  other-
    33  wise  eligible  to  receive benefits under this section at the time such
    34  employment for a non-covered employer commenced.
    35    [5. The foregoing provisions of this section shall not apply to family
    36  leave benefits, as family leave benefits are not available to  employees
    37  that  are  not  employed at the time family leave is requested by filing
    38  the notice and medical certification required by the chair.]
    39    § 8.  Paragraph (b) of subdivision 4 of section 212  of  the  workers'
    40  compensation law, as added by section 13 of part SS of chapter 54 of the
    41  laws of 2016, is amended to read as follows:
    42    (b)  Notwithstanding  the  definition  of  "employer"  in  section two
    43  hundred one of this article, a sole  proprietor,  member  of  a  limited
    44  liability  company  or  limited liability partnership, or other self-em-
    45  ployed person may become  a  covered  employer  under  this  article  by
    46  complying  with  the  provisions  of  subdivision one of this section. A
    47  self-employed person who becomes a covered employer under  this  section
    48  shall  become eligible for disability and family leave benefits no later
    49  than four weeks after the purchase of a policy of insurance  under  this
    50  article.
    51    §  9.   Severability.  If  any  clause,  sentence, paragraph, subdivi-
    52  sion or section of this act shall be adjudged by any court of  competent
    53  jurisdiction  to be invalid, such  judgment shall not affect, impair, or
    54  invalidate the remainder thereof, but shall be confined in its operation
    55  to the clause, sentence, paragraph,   subdivision,   section   or   part
    56  thereof   directly involved  in  the  controversy  in  which  such judg-
        S. 8735                             6

     1  ment shall have been rendered. It is hereby declared to be the intent of
     2  the legislature that this act would  have  been  enacted  even  if  such
     3  invalid provisions had not been included herein.
     4    §  10.   This act shall take effect on the sixtieth day after it shall
     5  have become a law.   Effective immediately, the   addition,    amendment
     6  and/or repeal of any rule or regulation necessary for the implementation
     7  of  this  act  on its effective   date   are   authorized to be made and
     8  completed on or before such effective date.