Provides workers' compensation benefits for family care; applies to employee and family member's taking family leave to care for the employee.
TITLE OF BILL: An act to amend the workers' compensation law and the insurance law, in relation to providing benefits for family care
PURPOSE: This bill provides for the payment of disability benefits to employees who take family leave, either to bond with a child under the age of one, or to care for a sick relative.
SUMMARY OF PROVISIONS: Section 1 of the bill amends the definition of "disability" in Workers' compensation Law (WCL) § 201(9) to include family leave.
Section 2 of the bill amends the definition of "day of disability" in WCL § 201(14) to include days taken for family leave.
Section 3 of the bill adds paragraphs 15 through 24 to WCL § 201 to add definitions for "family ;Leave," "child," "domestic partner," "serious health condition," "parent," "family member," "in loco parentis," "grandchild" "health care provider," and "family care cost." "Family leave" is defined to mean any leave from work necessary to care for a seriously ill family member, or to bond with a child during his or her first twelve months. A "family member" is defined to mean a child, spouse, domestic partner, parent or grandchild. "Family care cost," the amount that may be passed on to employees for the cost of the family care benefit, is defined to be forty-five cents until, July I, 2013, and thereafter an amount set by the Superintendent of Insurance on an annual basis in accordance with strictures set forth in the bill.
Section 4 of the bill amends WCL § 204 to set the commencement date for a period of family leave as the start of the leave period taken by the employee.
Section 5 of the bill amends WCL § 205 to make clear which of its provisions apply to disability for sickness and injury, and which to family leave, and to set distinct periods for receipt of disability benefits: twenty-six weeks for sickness and injury, and twelve weeks for family leave. It also states that no benefits under this article may be taken for the time an employee is absent from work for disciplinary reasons, and that no family care benefit may be taken when the employee is absent for personal sickness or injury.
Section 6 of the bill adds a new section 205-a to the WCL to make clear that receipt of disability benefits for sickness or injury does not affect the time limitations for family leave, and receipt of disability benefits for family leave does not affect the time limitations for receipt of benefits for sickness or injury.
Section 7 of the bill amends WCL § 209(3) to raise the amount of weekly disability costs that an employer can pass on to an employee
from sixty cents to sixty cents plus the "family care cost," as defined in WCL § 201 (24).
Section 8 of the bill amends WCL § 211 to make clear that the family care benefits provided for in this bill do not affect or alter existing rights under collective bargaining agreements, and that employers may secure benefits for disability arising from injury or sickness, and for family care, from different sources or through different means.
Section 9 of the bill amends the WCL to create a new section 211-a to allow public employees to opt in to the family care benefit through their representative organizations. The section sets forth specific times when such organizations may opt in or out, including three months prior to the effective date of the bill; upon three months notice where the employer does not already participate in the statutory disability program; and at any mutually agreeable time. When an employee organization opts into the benefit on behalf of its members, the employer may require the employees to pay the family care cost, unless there is a collectively negotiated agreement otherwise.
Section 10 of the bill amends WCL § 212 to make clear that when a public employer opts into benefits under this article, it may do so as to disability, family leave, or both.
Section 11 of the bill amends WCL § 76 to allow the State Insurance Fund to provide insurance for family care benefits, either together with or separate from disability insurance.
Section 12 of the bill amends WCL § 217 to set forth the requirements for proof of disability in cases of family leave, and to require that where an employee receives disability benefits for time spent caring for a sick relative, the relative must subject himself or herself to a medical examination in certain circumstances.
Section 13 of the bill amends WCL § 221 to make clear in regard to contested claims that certain proofs of disability applicable to cases of sickness or injury must be submitted only when relevant.
Section 14 of the bill amends WCL § 229(2) to require employers to provide each employee with notice regarding disability benefits, in a form prescribed by the chair of the Workers' Compensation Board, within thirty days of the section's effective date, and thirty days of any new employee's initial day of work.
Section 15 of the bill adds a new section 239-a to the WCL requiring the Department of Insurance to study, and report to the Governor and both houses of Legislature by April I, 2012, on the feasibility and impact of community rating disability insurance. This section also provides for the creation of a fifteen member family care advisory council, which will consult with the Superintendent of Insurance and issue reports on various issues relating to the family care benefit.
Section 16 of the bill amends Insurance law subsection 1113 (a) to include family care benefits and disability benefits from sickness or
injury within "accident and health insurance," or insurance against death or personal injury.
Section 17 of the bill provides the effective date.
EXISTING LAW: Sections 200 through 242 of the WCL require employers to provide for the payment of disability benefits of up to $170 per week when an employee is absent from work due to sickness or injury unrelated to his or her work. Disability is defined to include pregnancy, but not any form of family leave unrelated to the employee's own sickness or injury.
STATEMENT IN SUPPORT: Many families today experience a fierce struggle as they attempt to balance the need to earn a living with the need to care for their children and seriously ill family members. Often economic necessity forces parents to return to work very shortly after a child is born or adopted. Although the federal Family and Medical Leave Act (FMLA) guarantees twelve weeks of unpaid leave to covered workers, a national study found that 77% of those who did not take needed leave under FMLA refrained from doing so because they could not afford the unpaid time.
With the increase in recent decades of women in the workforce, of dual earner households, and of households headed by single parents, often the only potential caretaker for a new child or sick family member is an individual who is employed outside of the home. Paid family care benefits will allow those individuals to remain in the workforce even as they shoulder their family responsibilities. In addition, because people are living longer, workers a.re increasingly finding it necessary to take time off work to care for elderly parents or seriously ill loved ones. For many families, medical emergencies lead to financial ruin, resulting not only from medical bills but also from lack of income. Allowing caretakers to receive a modest income during a limited time away from work would help forestall such financial distress.
When parents are unable to take leave after a child's birth, the consequence is not only disruption for the family but potential damage to the child's development, since research on child development shows the important role of early bonding with parents. Thus, paid family care benefits are a cornerstone of an effective birth-to-five education agenda, and policies that allow parents a reasonable payment for time off taken after a birth, adoption, or foster care placement affect not only the workers who are able to take leave but also the rest of New York's residents, who have a stake in a healthy next generation. This bill seeks to address these problems by creating a paid family care program. Under the provision of the bill, workers can receive a modest cash benefit for twelve weeks while they are on leave to bond with a newborn, newly adopted child, or newly placed foster child; or to care for a seriously ill parent, child, spouse, domestic partner, grandchild or parent-in-law. Domestic partners are included in recognition of their important role in the furtherance of caring, committed family relationships, and grandchildren are included in
recognition of the many families in which grandparents are the primary caretakers of their grandchildren
The bill structures the paid family leave program within the existing Temporary Disability Insurance (TDI) program administered by the Workers' Compensation Board.
There are a number of benefits to using the existing TDI system.
First, an administrative agency and process for administering the program already exist, and many of its elements are already established, such as eligibility requirements, waiting periods, penalties, and antifraud protections. Beneficiaries of the paid family leave program, like the current beneficiaries of TDI, will be required: (a) to be employed with a covered employer for four weeks prior to the date of disability; and (b) to wait seven days before receiving benefits.
Second, employers will not need to adjust to a new program, but will simply augment their existing coverage for disability to include family leave. Like TDI, the bill covers virtually all private employers, and approximately half of local public employers (those that have already opted in to TDI). TDI itself confers no job protection for employees who miss work because of a qualified disability. only employees covered by FMLA or other leave program would have job protection under this bill.
Third, the cost of providing TDI can be shared between employers and employees. At present, employers may deduct a maximum of 60 cents per week from employees, or $31.20 per year. In practice, not all employers take the 60 cent weekly payroll deduction. The bill would allow for the lifting of the current 60 cent cap on the employee contribution, and allow employers to pass on to employees an additional amount equal to the average cost of providing coverage for family care. For the first year, that amount will be set at 45 cents per week, an amount estimated to be sufficient to cover the average increase per employee in the cost of TDI insurance resulting from the family care benefit. Thereafter, the amount will be set by the Superintendent of Insurance based on a sound actuarial calculation of the average cost of providing the benefit.
Fourth, the TDI system does not require extensive government intervention. Most cases are resolved through the employer, employee and insurer, without any government involvement. Many other developed nations have some form of paid leave, and this proposal is one of many pending nationwide to provide families with greater support during the critical moments of the lives of their newborn children or their seriously ill family members. In 2002, California created the nation's first paid family leave program, and Washington has now enacted a similar proposal. with this bill, New York can move to the forefront of this effort to support working families by increasing their ability to spend time on crucial family matters, and providing them with a means of support during that time.
LEGISLATIVE HISTORY: 2009-2010: S.4074 - Referred to Labor
BUDGET IMPLICATIONS: The bill does require coverage for state employees, and all private benefits are funded either by employers (either through self-insurance or a policy purchased from a carrier or the State Insurance Fund) or by employees. Either the State or public employee unions covering state workers may opt into the benefit, which could entail cost if the option was exercised, and depending on whether any negotiated limits were placed on the pass through to employees. The bill will also require modest additional administrative expenses for such increased operation of the Workers' Compensation Board as is needed to administer the new benefits.
This bill takes effect immediately, with provisions.
STATE OF NEW YORK ________________________________________________________________________ 1252 2011-2012 Regular Sessions IN SENATE January 6, 2011 ___________Introduced by Sen. ADDABBO -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the workers' compensation law and the insurance law, in relation to providing benefits for family care THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 9 of section 201 of the workers' compensation law is amended by adding a new paragraph C to read as follows: C. "DISABILITY" ALSO INCLUDES FAMILY CARE, AS DEFINED IN SUBDIVISION FIFTEEN OF THIS SECTION. UNLESS OTHERWISE SET FORTH IN THIS ARTICLE, ALL PROVISIONS OF THIS ARTICLE APPLICABLE TO DISABILITY SHALL APPLY TO BOTH DISABILITY ARISING FROM SICKNESS AND INJURY, AND TO FAMILY CARE. S 2. Subdivision 14 of section 201 of the workers' compensation law, as added by chapter 600 of the laws of 1949 and as renumbered by chapter 438 of the laws of 1964, is amended to read as follows: 14. "A day of disability" means any day on which the employee was prevented from performing work because of disability, INCLUDING ANY DAY ON WHICH THE EMPLOYEE TOOK OFF FOR FAMILY CARE, and for which
[he]THE EMPLOYEE has not received his OR HER regular remuneration. S 3. Section 201 of the workers' compensation law is amended by adding ten new subdivisions 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 to read as follows: 15. "FAMILY CARE" SHALL MEAN ANY LEAVE TAKEN BY AN EMPLOYEE FROM WORK: A. TO PARTICIPATE IN PROVIDING CARE, INCLUDING PHYSICAL OR PSYCHOLOGICAL CARE, FOR A FAMILY MEMBER OF THE EMPLOYEE MADE NECESSARY BY A SERIOUS HEALTH CONDITION OF THE FAMILY MEMBER; OR B. TO BOND WITH HIS OR HER CHILD DURING THE FIRST TWELVE MONTHS AFTER THE CHILD'S BIRTH, OR THE FIRST TWELVE MONTHS AFTER THE PLACEMENT OF THE CHILD FOR ADOPTION OR FOSTER CARE WITH THE EMPLOYEE. 16. "CHILD" MEANS A BIOLOGICAL, ADOPTED, OR FOSTER CHILD, A STEPCHILD, A LEGAL WARD, OR A CHILD OF A PERSON STANDING IN LOCO PARENTIS, WHO IS:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01385-01-1 S. 1252 2
A. UNDER EIGHTEEN YEARS OF AGE; OR B. EIGHTEEN YEARS OF AGE OR OLDER AND INCAPABLE OF SELF-CARE BECAUSE OF A MENTAL OR PHYSICAL DISABILITY. 17. "DOMESTIC PARTNER" HAS THE MEANING SET FORTH IN SECTION FOUR OF THIS CHAPTER. 18. "SERIOUS HEALTH CONDITION" MEANS AN ILLNESS, INJURY, IMPAIRMENT, OR PHYSICAL OR MENTAL CONDITION THAT: A. REQUIRES INPATIENT CARE IN A HOSPITAL, HOSPICE OR RESIDENTIAL HEALTH CARE FACILITY; OR B. REQUIRES CONTINUING TREATMENT BY A HEALTH CARE PROVIDER. 19. "PARENT" MEANS THE BIOLOGICAL, ADOPTIVE, OR FOSTER PARENT OF AN EMPLOYEE OR INDIVIDUAL WHO STOOD IN LOCO PARENTIS TO AN EMPLOYEE WHEN THE EMPLOYEE WAS A SON OR DAUGHTER. 20. "FAMILY MEMBER" MEANS A CHILD, SPOUSE, DOMESTIC PARTNER, PARENT, GRANDCHILD, MOTHER-IN-LAW OR FATHER-IN-LAW. 21. PERSONS WHO ARE "IN LOCO PARENTIS" INCLUDE THOSE WITH DAY-TO-DAY RESPONSIBILITIES TO CARE FOR AND FINANCIALLY SUPPORT A CHILD OR, IN THE CASE OF AN EMPLOYEE, WHO HAD SUCH RESPONSIBILITY FOR THE EMPLOYEE WHEN THE EMPLOYEE WAS A CHILD. A BIOLOGICAL OR LEGAL RELATIONSHIP IS NOT NECESSARY. 22. "GRANDCHILD" MEANS THE CHILD OF A CHILD. 23. "HEALTH CARE PROVIDER" MEANS ANY PROVIDER TREATING AN EMPLOYEE'S INJURY OR SICKNESS, OR A FAMILY MEMBER'S SERIOUS HEALTH CONDITION, INCLUDING A PHYSICIAN, PODIATRIST, CHIROPRACTOR, DENTIST, PSYCHOLOGIST, CERTIFIED NURSE MIDWIFE, OR IN THE CASE OF A FAMILY MEMBER WHO ADHERES TO THE FAITH OR TEACHINGS OF ANY CHURCH OR DENOMINATION, AND WHO IN ACCORDANCE WITH ITS CREED, TENETS OR PRINCIPLES DEPENDS FOR HEALING UPON PRAYER THROUGH SPIRITUAL MEANS ALONE IN THE PRACTICE OF RELIGION, BY AN ACCREDITED PRACTITIONER, CONTAINING FACTS AND OPINIONS AS TO SUCH HEALTH CONDITION IN COMPLIANCE WITH REGULATIONS OF THE CHAIR. 24. "FAMILY CARE COST" SHALL MEAN (A) PRIOR TO JULY FIRST, TWO THOU- SAND THIRTEEN, FORTY-FIVE CENTS PER WEEK; AND (B) DURING EVERY SUBSE- QUENT YEAR COMMENCING ON JULY FIRST, SUCH AMOUNT AS SHALL BE SET BY REGULATION OF THE SUPERINTENDENT OF INSURANCE FOLLOWING CONSULTATION WITH THE FAMILY CARE ADVISORY COUNCIL BY APRIL FIRST OF THE SAME YEAR BASED ON HIS OR HER ACTUARIALLY SOUND ESTIMATION OF THE COST PER EMPLOY- EE OF PROVIDING FAMILY CARE BENEFITS, BUT IN NO EVENT MORE THAN ONE HUNDRED FIFTEEN PERCENT OF HIS OR HER ESTIMATION OF THE COST PER EMPLOY- EE OF PROVIDING SEPARATE FAMILY CARE BENEFITS THROUGH THE STATE INSUR- ANCE FUND. S 4. Subdivision 1 of section 204 of the workers' compensation law, as added by chapter 600 of the laws of 1949, is amended to read as follows: 1. Disability benefits shall be payable to an eligible employee for disabilities commencing after June thirtieth, nineteen hundred fifty, beginning with the eighth consecutive day of disability and thereafter during the continuance of disability, subject to the limitations as to maximum and minimum amounts and duration and other conditions and limi- tations in this section and in sections two hundred five and two hundred six OF THIS ARTICLE. Successive periods of disability caused by the same or related injury or sickness OR REASON FOR FAMILY CARE shall be deemed a single period of disability only if separated by less than three months. FOR PURPOSES OF THIS SUBDIVISION, DAYS OF DISABILITY FOR ANY FAMILY CARE SHALL COMMENCE AT THE START OF THE LEAVE PERIOD TAKEN BY THE EMPLOYEE TO PROVIDE FAMILY CARE. S 5. Subdivisions 1, 2, 3, 4, 7 and 8 of section 205 of the workers' compensation law, subdivision 1 as amended by chapter 651 of the laws of 1958, subdivision 2 as amended by chapter 270 of the laws of 1990 and subdivisions 3, 4, 7 and 8 as added by chapter 600 of the laws of 1949S. 1252 3
and as renumbered by chapter 352 of the laws of 1981, are amended and a new subdivision 9 is added to read as follows: 1.
[For](A) FOR DISABILITY RESULTING FROM INJURY OR SICKNESS OF AN EMPLOYEE, FOR more than twenty-six weeks during a period of fifty-two consecutive calendar weeks or during any one period of disability; OR (B) FOR FAMILY CARE, FOR MORE THAN TWELVE WEEKS DURING A PERIOD OF FIFTY-TWO CONSECUTIVE CALENDAR WEEKS OR DURING ANY ONE PERIOD OF FAMILY CARE; 2. for any period of disability RESULTING FROM THE INJURY OR SICKNESS OF AN EMPLOYEE during which an employee is not under the care of a duly licensed physician or with respect to disability resulting from a condi- tion of the foot which may lawfully be treated by a duly registered and licensed podiatrist of the state of New York or with respect to a disa- bility resulting from a condition which may lawfully be treated by a duly registered and licensed chiropractor of the state of New York or with respect to a disability resulting from a condition which may lawfully be treated by a duly licensed dentist of the state of New York or with respect to a disability resulting from a condition which may lawfully be treated by a duly registered and licensed psychologist of the state of New York or with respect to a disability resulting from a condition which may lawfully be treated by a duly certified nurse midwife, for any period of such disability during which an employee is neither under the care of a physician nor a podiatrist, nor a chiroprac- tor, nor a dentist, nor a psychologist, nor a certified nurse midwife; and for any period of disability during which an employee who adheres to the faith or teachings of any church or denomination and who in accord- ance with its creed, tenets or principles depends for healing upon pray- er through spiritual means alone in the practice of religion, is not under the care of a practitioner duly accredited by the church or denom- ination, and provided such employee shall submit to all physical exam- inations as required by this chapter [.]; 3. for any disability RESULTING FROM INJURY OR SICKNESS OF AN EMPLOYEE occasioned by the wilful intention of the employee to bring about injury to or the sickness of himself or another, or resulting from any injury or sickness sustained in the perpetration by the employee of an illegal act; 4. for any day of disability during which the employee performed work for remuneration or profit; BUT NOT INCLUDING ANY REMUNERATION RECEIVED FOR CARING FOR A FOSTER OR ADOPTED CHILD OR OTHER INDIVIDUAL RESIDING IN THE EMPLOYEE'S PLACE OF RESIDENCE; 7. for any disability due to any act of war, declared or undeclared, if such act shall occur after June thirtieth, nineteen hundred fifty, EXCEPT THAT NOTHING IN THIS SUBDIVISION SHALL BAR AN EMPLOYEE FROM RECEIVING BENEFITS UNDER THIS ARTICLE FOR CARE OF A FAMILY MEMBER DISA- BLED DUE TO AN ACT OF WAR; 8. for any disability RESULTING FROM AN INJURY OR SICKNESS TO THE EMPLOYEE commencing before the employee becomes eligible to benefits hereunder [or commencing prior to July first, nineteen hundred fifty, but this shall not preclude benefits for recurrence after July first, nineteen hundred fifty, of a disability commencing prior thereto.]; 9. FOR ANY DAY OF ABSENCE FROM WORK REQUIRED PURSUANT TO ANY DISCIPLI- NARY PROCESS; OR, IN REGARD TO FAMILY CARE BENEFITS, ANY DAY OF ABSENCE FROM WORK RESULTING FROM INJURY OR SICKNESS TO THE EMPLOYEE, INCLUDING ANY LEAVE TAKEN UNDER SECTION SEVENTY-ONE OR SEVENTY-THREE OF THE CIVIL SERVICE LAW.S. 1252 4
S 6. The workers' compensation law is amended by adding a new section 205-a to read as follows: S 205-A. RELATIONSHIP BETWEEN DISABILITY BENEFITS FOR FAMILY CARE AND FOR THE EMPLOYEE'S OWN SICKNESS OR ILLNESS. THE RECEIPT OF BENEFITS FOR DISABILITY RESULTING FROM SICKNESS OR INJURY TO THE EMPLOYEE, INCLUDING PREGNANCY AND CHILDBIRTH, SHALL NOT COUNT TOWARD ANY TIME LIMITATION UNDER SUBDIVISION ONE OF SECTION TWO HUNDRED FIVE OF THIS ARTICLE ON THE RECEIPT OF BENEFITS FOR FAMILY CARE, AND THE RECEIPT OF BENEFITS FOR FAMILY CARE SHALL NOT COUNT TOWARD ANY TIME LIMITATION UNDER SUBDIVISION ONE OF SECTION TWO HUNDRED FIVE OF THIS ARTICLE ON THE RECEIPT OF BENE- FITS FOR DISABILITY RESULTING FROM SICKNESS OR INJURY TO THE EMPLOYEE, EXCEPT THAT AN EMPLOYEE MAY RECEIVE DISABILITY BENEFITS ON ONLY ONE CLAIM AT ANY TIME. S 7. Subdivision 3 of section 209 of the workers' compensation law, as amended by chapter 415 of the laws of 1983, is amended to read as follows: 3. The contribution of each such employee to the cost of disability benefits provided by this article shall be one-half of one per centum of the employee's wages paid to him on and after July first, nineteen hundred fifty, but not in excess of sixty cents per week FOR THE COST OF DISABILITY BENEFITS FOR SICKNESS OR INJURY, PLUS THE FAMILY CARE COST, AS DEFINED IN SUBDIVISION TWENTY-FOUR OF SECTION TWO HUNDRED ONE OF THIS ARTICLE. S 8. Section 211 of the workers' compensation law is amended by adding two new subdivisions 7 and 8 to read as follows: 7. SUCH FAMILY CARE BENEFITS AS ARE PROVIDED FOR IN THIS ARTICLE SHALL BE IN ADDITION TO, AND SHALL NOT AMEND, REPEAL OR REPLACE, THE TERMS OF ANY AGREEMENT THAT IS COLLECTIVELY NEGOTIATED BETWEEN AN EMPLOYER AND AN EMPLOYEE ORGANIZATION, INCLUDING AGREEMENT OR INTEREST ARBITRATION AWARDS MADE PURSUANT TO ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW. 8. NOTHING IN THIS ARTICLE SHALL REQUIRE AN EMPLOYER TO USE THE SAME CARRIER TO PROVIDE BENEFITS REQUIRED BY OR PERMISSIBLE UNDER THIS ARTI- CLE FOR DISABILITY RESULTING FROM SICKNESS OR INJURY AS IT USES TO PROVIDE BENEFITS REQUIRED BY OR PERMISSIBLE UNDER THIS ARTICLE FOR FAMI- LY CARE. AN EMPLOYER MAY USE A DIFFERENT MEANS, AMONG THOSE SET FORTH IN SUBDIVISIONS ONE THROUGH FIVE OF THIS SECTION, TO PROVIDE BENEFITS REQUIRED BY THIS ARTICLE FOR DISABILITY RESULTING FROM SICKNESS OR INJU- RY, FROM THE MEANS USED TO PROVIDE BENEFITS REQUIRED BY THIS ARTICLE FOR FAMILY CARE. S 9. The workers' compensation law is amended by adding a new section 211-a to read as follows: S 211-A. PUBLIC EMPLOYEES; EMPLOYEE OPT IN. 1. FOR PURPOSES OF THIS SECTION, "PUBLIC EMPLOYEE" MEANS ANY EMPLOYEE OF THE STATE, ANY POLI- TICAL SUBDIVISION OF THE STATE, A PUBLIC AUTHORITY OR ANY OTHER GOVERN- MENTAL AGENCY OR INSTRUMENTALITY. "PUBLIC EMPLOYER" MEANS THE STATE, ANY POLITICAL SUBDIVISION OF THE STATE, A PUBLIC AUTHORITY OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY THEREOF. "EMPLOYEE ORGANIZATION" SHALL HAVE THE MEANING SET FORTH IN SECTION TWO HUNDRED ONE OF THE CIVIL SERVICE LAW. 2. PUBLIC EMPLOYERS SHALL PROVIDE BENEFITS FOR FAMILY CARE TO PUBLIC EMPLOYEES WHERE AN EMPLOYEE ORGANIZATION THAT REPRESENTS THOSE EMPLOYEES OPTS IN TO FAMILY CARE IN ACCORDANCE WITH THE PROCEDURES AND TERMS SET FORTH IN SUBDIVISION THREE OF THIS SECTION. 3. AN EMPLOYEE ORGANIZATION MAY OPT IN TO THE FAMILY CARE BENEFIT ON BEHALF OF THOSE EMPLOYEES IT REPRESENTS:S. 1252 5
A. UPON NOTICE GIVEN TO THE PUBLIC EMPLOYER PRIOR TO APRIL FIRST, TWO THOUSAND TWELVE, WHICH OPT IN SHALL BECOME EFFECTIVE ONLY ON JULY FIRST, TWO THOUSAND TWELVE; B. AT ANY TIME UPON NINETY DAYS NOTICE FOR ANY EMPLOYER WHO IS NOT PROVIDING DISABILITY BENEFITS FOR SICKNESS AND INJURY UNDER SECTION TWO HUNDRED TWELVE OF THIS ARTICLE, OR WHO IS SELF-INSURED FOR SUCH BENE- FITS; C. FOR ANY EMPLOYER WHO IS PROVIDING DISABILITY BENEFITS FOR SICKNESS AND INJURY UNDER SECTION TWO HUNDRED TWELVE OF THIS ARTICLE, UPON NOTICE AT LEAST NINETY DAYS PRIOR TO THE EXPIRATION OF THE EMPLOYER'S INSURANCE POLICY FOR SUCH BENEFITS, WHICH OPT IN SHALL BE EFFECTIVE ONLY FOR THE TIME PERIOD COVERED BY ANY SUBSEQUENT POLICY OR RENEWAL; OR D. AT ANY TIME AS IS MUTUALLY AGREED UPON BETWEEN THE EMPLOYEE ORGAN- IZATION AND ANY PUBLIC EMPLOYER. AN EMPLOYEE ORGANIZATION THAT HAS OPTED IN TO THE FAMILY CARE BENEFIT MAY OPT OUT OF IT WITHIN THE TIME PERIODS, AND EFFECTIVE UPON THE SAME DATES, SET FORTH IN THIS PARAGRAPH. THE EMPLOYEE ORGANIZATION SHALL PROVIDE NOTICE OF SUCH TO THE BOARD WITHIN SEVEN DAYS OF NOTICE TO THE EMPLOYER. 4. IN THE ABSENCE OF ANY CONTRARY STATEMENT IN A COLLECTIVELY NEGOTI- ATED AGREEMENT UNDER ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW, A PUBLIC EMPLOYER MAY REQUIRE PUBLIC EMPLOYEES WHO OPT IN UNDER THIS SECTION TO CONTRIBUTE UP TO THE FAMILY CARE COST, AS DEFINED IN SUBDIVISION TWEN- TY-FOUR OF SECTION TWO HUNDRED ONE OF THIS ARTICLE, PER WEEK IN ACCORD- ANCE WITH THE PROCEDURE SET FORTH IN SECTION TWO HUNDRED NINE OF THIS ARTICLE. S 10. Subdivision 1 of section 212 of the workers' compensation law, as amended by chapter 740 of the laws of 1960, is amended to read as follows: 1. Any employer not required by this article to provide for the payment of disability benefits to his employees, or to any class or classes thereof, may become a covered employer or bring within the provisions of this article such employees or class or classes thereof by voluntarily electing to provide for payment of
[such]benefits FOR DISA- BILITY RESULTING FROM SICKNESS OR INJURY, FOR FAMILY CARE, OR BOTH, in one or more of the ways set forth in section two hundred eleven OF THIS ARTICLE; but such election shall be subject to the approval of the chairman, and if the employees are required to contribute to the cost of such benefits the assent within thirty days before such approval is granted, of more than one-half of such employees shall be evidenced to the satisfaction of the chairman. On approval by the chairman of such election to provide benefits, all the provisions of this article shall become and continue applicable as if the employer were a covered employ- er as defined in this article. The obligation to continue as a covered employer with respect to employees for whom provision of benefits is not required under this article, may be discontinued by such employer on ninety days notice to the chairman in writing and to his employees, after he has provided for payment of benefits for not less than one year and with such provision for payment of obligations incurred on and prior to the termination date as the chairman may approve. ANY ELECTION BY A PUBLIC EMPLOYER TO PROVIDE FAMILY CARE BENEFITS MADE PRIOR TO JULY FIRST, TWO THOUSAND TWELVE SHALL BE EFFECTIVE ON THAT DATE. S 11. Subdivision 2 of section 76 of the workers' compensation law, as added by chapter 600 of the laws of 1949, is amended to read as follows: 2. The purposes of the state insurance fund herein created are hereby enlarged to provide [for the]insurance [by the state insurance fund of]S. 1252 6
FOR the payment of the benefits required by section two hundred four of this chapter, INCLUDING BENEFITS FOR FAMILY CARE PROVIDED EITHER IN THE SAME POLICY WITH OR IN A SEPARATE POLICY FROM BENEFITS FOR DISABILITY RESULTING FROM INJURY OR SICKNESS OF AN EMPLOYEE, AND AS PROVIDED PURSU- ANT TO SECTION TWO HUNDRED ELEVEN-A OF THIS CHAPTER. A separate fund is hereby created within the state insurance fund, which shall be known as the "disability benefits fund", and which shall consist of all premiums received and paid into said fund on account of such insurance, all secu- rities acquired by and through the use of moneys belonging to said fund and of interest earned upon moneys belonging to said fund and deposited or invested as herein provided. Said disability benefits fund shall be applicable to the payment of benefits, expenses and assessments on account of insurance written pursuant to article nine of this chapter. S 12. Subdivisions 1, 2, 3 and 4 of section 217 of the workers' compensation law, subdivision 1 as amended by chapter 167 of the laws of 1999, subdivisions 2 and 3 as amended by chapter 270 of the laws of 1990 and subdivision 4 as added by chapter 600 of the laws of 1949, are amended to read as follows: 1. Written notice and proof of disability shall be furnished to the employer by or on behalf of the employee claiming benefits or, in the case of a claimant under section two hundred seven of this article, to the chair, within thirty days after commencement of the period of disa- bility. Additional proof shall be furnished thereafter from time to time as the employer or carrier or chair may require but not more often than once each week. Such proof shall include: (A) IN THE CASE OF DISABILITY RESULTING FROM SICKNESS OR INJURY TO THE EMPLOYEE, a statement of disability by the employee's attending
[physi- cian or attending podiatrist or attending chiropractor or attending dentist or attending psychologist or attending certified nurse midwife, or in the case of an employee who adheres to the faith or teachings of any church or denomination, and who in accordance with its creed, tenets or principles depends for healing upon prayer through spiritual means alone in the practice of religion, by an accredited practitioner, containing facts and opinions as to such disability in compliance with regulations of the chair.]HEALTH CARE PROVIDER; (B) IN THE CASE OF FAMILY CARE FOR BONDING WITH A NEW CHILD, A BIRTH CERTIFICATE, CERTIFICATE OF ADOPTION, OR OTHER COMPETENT EVIDENCE SHOW- ING THAT THE EMPLOYEE IS THE PARENT OF A CHILD WITHIN TWELVE MONTHS OF THAT CHILD'S BIRTH OR PLACEMENT FOR ADOPTION OR FOSTER CARE WITH THE EMPLOYEE; (C) IN THE CASE OF BENEFITS FOR CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION: (I) A STATEMENT BY THE FAMILY MEMBER'S HEALTH CARE PROVIDER, CONTAIN- ING FACTS AND OPINIONS AS TO SUCH HEALTH CONDITION IN COMPLIANCE WITH REGULATIONS OF THE CHAIR; AND (II) A STATEMENT SUBSCRIBED BY THE EMPLOYEE AND AFFIRMED BY HIM OR HER AS TRUE UNDER PENALTIES OF PERJURY, OR OTHER EQUIVALENT DOCUMENTARY PROOF, THAT THE EMPLOYEE IS A PRIMARY CARE GIVER FOR THE FAMILY MEMBER DURING THE TIME OF DISABILITY. Failure to furnish notice or proof within the time and in the manner above provided shall not invalidate the claim but no benefits shall be required to be paid for any period more than two weeks prior to the date on which the required proof is furnished unless it shall be shown to the satisfaction of the chair not to have been reasonably possible to furnish such notice or proof and that such notice or proof was furnished as soon as possible; provided, however, that no benefits shall be paidS. 1252 7
unless the required proof of disability is furnished within twenty-six weeks after commencement of the period of disability. No limitation of time provided in this section shall run as against any person who is mentally incompetent, or physically incapable of providing such notice as a result of a serious medical condition, or a minor so long as such person has no guardian of the person and/or property. 2. An employee claiming benefits FOR HIS OR HER SICKNESS OR INJURY, OR THE FAMILY MEMBER OF SUCH EMPLOYEE IN ANY CASE WHERE THE EMPLOYEE CLAIMS FAMILY CARE BENEFITS FOR PROVIDING CARE TO THAT FAMILY MEMBER shall, as requested by the employer or carrier, submit himself or herself at intervals, but not more than once a week, for examination by a
[physi- cian or podiatrist or chiropractor or dentist or psychologist or certi- fied nurse midwife]RELEVANT HEALTH CARE PROVIDER designated by the employer or carrier. All such examinations shall be without cost to the employee OR FAMILY MEMBER and shall be held at a reasonable time and place. 3. The chair may direct the claimant WHO SEEKS DISABILITY BENEFITS FOR HIS OR HER SICKNESS OR INJURY, OR THE CLAIMANT'S FAMILY MEMBER WHERE THE CLAIMANT SEEKS DISABILITY BENEFITS FOR FAMILY LEAVE TO PROVIDE CARE TO THAT FAMILY MEMBER to submit to examination by a [physician or podia- trist or chiropractor or dentist or psychologist]RELEVANT HEALTH CARE PROVIDER designated by him or her in any case in which the claim to disability benefits is contested and in claims arising under section two hundred seven OF THIS ARTICLE, and in other cases as the chair or board may require. 4. Refusal of the claimant OR FAMILY MEMBER without good cause to submit to any such examination shall disqualify [him]THE CLAIMANT from all benefits hereunder for the period of such refusal, except as to benefits already paid. S 13. The opening paragraph of section 221 of the workers' compen- sation law, as separately amended by chapters 425 and 500 of the laws of 1985, is amended to read as follows: Within twenty-six weeks of written notice of rejection of claim, the employee may file with the chairman a notice that his or her claim for disability benefits has not been paid, and the employee shall submit proof of disability and of his or her employment, wages and other facts reasonably necessary for determination of the employee's right to such benefits. Failure to file such notice within the time provided, may be excused by the chairman if it can be shown to the satisfaction of the chairman not to have been reasonably possible to furnish such notice and that such notice was furnished as soon as possible. On demand of the chairman the employer or carrier shall forthwith deliver to the chairman PROOF OF DISABILITY, INCLUDING IF RELEVANT the original or a true copy of the attending physician's or attending podiatrist's or accredited practitioner's statement, wage and employment data and all other papers in the possession of the employer or carrier with respect to such claim. S 14. Subdivision 2 of section 229 of the workers' compensation law, as added by chapter 271 of the laws of 1985, is amended to read as follows: 2. Whenever an employee of a covered employer who is eligible for benefits under section two hundred four of this article shall be absent from work due to a disability as defined in subdivision nine of section two hundred one of this article for more than seven consecutive days, the employer shall provide the employee with a written statement of the employee's rights under this article in a form prescribed by the chair- man. The statement shall be provided to the employee within five busi-S. 1252 8
ness days after the employee's seventh consecutive day of absence due to disability or within five business days after the employer knows or should know that the employee's absence is due to disability, whichever is later. EACH COVERED EMPLOYER SHALL PROVIDE EACH EMPLOYEE WITH A TYPE- WRITTEN, PRINTED OR ELECTRONIC NOTICE IN A FORM PRESCRIBED BY THE CHAIR, STATING THAT THE EMPLOYER HAS PROVIDED FOR THE PAYMENT OF DISABILITY BENEFITS AS REQUIRED BY THIS ARTICLE WITHIN THIRTY DAYS OF THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND ELEVEN WHICH AMENDED THIS SUBDIVISION. EACH COVERED EMPLOYER SHALL PROVIDE SUCH NOTICE TO ALL NEW EMPLOYEES WITHIN THIRTY DAYS OF THEIR FIRST DAY OF WORK. S 15. The workers' compensation law is amended by adding a new section 239-a to read as follows: S 239-A. FAMILY CARE STUDY AND MONITORING. 1. THE INSURANCE DEPART- MENT SHALL STUDY, AND REPORT TO THE GOVERNOR AND BOTH HOUSES OF THE LEGISLATURE BY APRIL FIRST, TWO THOUSAND TWELVE, ON THE FEASIBILITY AND IMPACT OF COMMUNITY RATING DISABILITY INSURANCE OR ANY ASPECT THEREOF. 2. THERE SHALL BE CREATED THE FAMILY CARE ADVISORY COUNCIL, WHICH SHALL CONSIST OF FIFTEEN MEMBERS TO BE APPOINTED BY THE GOVERNOR AS FOLLOWS: TWO ON RECOMMENDATION BY THE NEW YORK STATE AMERICAN FEDERATION OF LABOR-CONGRESS OF INDUSTRIAL ORGANIZATIONS, ONE OF WHOM SHALL BE REPRESENTATIVE OF PUBLIC EMPLOYEE ORGANIZATIONS CERTIFIED UNDER ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW, PARTICIPATING IN THE PAID FAMILY CARE PLAN, ONE OF WHOM IS REPRESENTATIVE OF UNIONS REPRESENTING WORKERS EMPLOYED IN THE PRIVATE SECTOR; TWO WHO ARE REPRESENTATIVES OF ORGANIZA- TIONS THAT REPRESENT EITHER COVERED BUSINESS OR PUBLIC EMPLOYERS IN NEW YORK STATE PARTICIPATING IN THE PAID FAMILY LEAVE PLAN; TWO ON NOMI- NATION OF THE SPEAKER OF THE ASSEMBLY; ONE ON NOMINATION BY THE MINORITY LEADER OF THE ASSEMBLY; TWO ON NOMINATION BY THE TEMPORARY PRESIDENT OF THE SENATE; ONE ON NOMINATION BY THE MINORITY LEADER OF THE SENATE; AND THE SUPERINTENDENT OF INSURANCE, COMMISSIONER OF LABOR AND CHAIR OF THE WORKERS' COMPENSATION BOARD, WHO SHALL SERVE AS MEMBERS EX OFFICIO. THE COMMISSIONER OF LABOR SHALL SERVE AS CHAIR OF THE COUNCIL. THE SUPER- INTENDENT OF INSURANCE AND CHAIR OF THE WORKERS' COMPENSATION BOARD SHALL CONSULT REGULARLY WITH THE COUNCIL ON THE IMPLEMENTATION OF THE FAMILY CARE BENEFIT. THE DEPARTMENT OF LABOR, THE INSURANCE DEPARTMENT AND THE WORKERS' COMPENSATION BOARD SHALL PROVIDE ALL NECESSARY PERSON- NEL AND LOGISTICAL SUPPORT AS MAY BE NECESSARY TO COMPLETE THE DUTIES OF THE ADVISORY COUNCIL. THE COUNCIL OR ANY OF ITS MEMBERS MAY ISSUE SUCH RECOMMENDATIONS OR REPORTS AS THEY DEEM WARRANTED ON THE FAMILY CARE BENEFIT, INCLUDING ON THE SCOPE OF THE BENEFIT, PROBLEMS WITH THE BENE- FIT; FUNDING OF THE BENEFIT INCLUDING PASS-THROUGH COSTS; POSSIBLE STATUTORY AMENDMENTS AND REGULATORY CHANGES; USAGE RATES; OUTREACH; AND COMMUNITY RATING. ANY SUCH RECOMMENDATIONS OR REPORTS SHALL BE PROVIDED TO THE GOVERNOR, SUPERINTENDENT OF INSURANCE, SPEAKER OF THE ASSEMBLY, TEMPORARY PRESIDENT OF THE SENATE AND MINORITY LEADERS OF THE SENATE AND ASSEMBLY. EACH MEMBER OF THE COMMISSION SHALL SERVE A TERM OF THREE YEARS. AN APPOINTMENT TO FILL A VACANCY SHALL BE MADE FOR THE REMAINDER OF THE AFFECTED TERM. MEMBERS SHALL RECEIVE NO COMPENSATION. S 16. Paragraph 3 of subsection (a) of section 1113 of the insurance law is amended as follows: (3) "Accident and health insurance," means (i) insurance against death or personal injury by accident or by any specified kind or kinds of accident and insurance against sickness, ailment or bodily injury, including insurance providing disability benefits pursuant to article nine of the workers' compensation law, INCLUDING ANY INSURANCE UNDER THAT ARTICLE FOR FAMILY CARE BENEFITS, DISABILITY BENEFITS RESULTINGS. 1252 9
FROM SICKNESS OR INJURY, OR BOTH, except as specified in item (ii) here- of; and (ii) non-cancellable disability insurance, meaning insurance against disability resulting from sickness, ailment or bodily injury (but excluding insurance solely against accidental injury) under any contract which does not give the insurer the option to cancel or other- wise terminate the contract at or after one year from its effective date or renewal date. S 17. This act shall take effect immediately; provided, however, that: (a) Sections one, two, three, four, five, six, seven, eight, nine, ten, twelve, thirteen, fourteen and sixteen of this act shall take effect July 1, 2012. (b) Paragraph a of subdivision 3 of section 211-a of the workers' compensation law, as added by section nine of this act allowing public employees to opt in to family care benefits prior to July 1, 2012 and paragraph (b) of subdivision 1 of section 212 of the workers' compen- sation law as added by section ten of this act allowing public employers to opt in to family care benefits prior to July 1, 2012, shall take effect immediately. (c) Effective immediately, the addition, amendment and/or repeal of any rules or regulations necessary for the implementation of this act and any administrative steps necessary to effectuate the purposes of this act on its effective date are authorized and directed to be made and completed on or before such effective date.