Bill S1824-2009

Relates to temporary disability benefits and provides benefit for family care

Relates to temporary disability benefits and provides benefit for family care.

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  • Jan 6, 2010: REFERRED TO LABOR
  • Feb 9, 2009: REFERRED TO LABOR

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 BILL NUMBER:  S1824

TITLE OF BILL :

An act to amend the workers' compensation law and the insurance law, in relation to temporary disability benefits and providing benefits for family care

PURPOSE :

This bill provides an increase in temporary disability benefits up to a maximum of one half of the average weekly wage in three steps, and indexed thereafter. The bill also provides for the payment of disability benefits to employees who take family leave, either for infant child care, adoption, related bonding, or care of an injured or ill family member.

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 to add definitions for "family leave.

Section 3 of the bill adds paragraph 15 through 23 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.

Section 4 of the bill amends subdivision 6 of section 201 of the workers' compensation law by adding new paragraph E specifying all benefits paid for family leave shall be paid in the same manner as the temporary disability benefits.

Section 5 amends section 203 of the worker's compensation law, as amended by chapter 436 of the laws of 1986 to provide that employees claiming benefits for paid family leave are eligible in the same manner as employees of a covered employer claiming benefits for disability.

Section 6 amends the workers' compensation law adding 203-A guaranteeing every covered employee utilizing paid family leave same or similar job back.

Section 7 amends section 204 of the workers' compensation law, as added by chapter 600 of the laws of 1949 and subdivision 2 as amended by chapter 38 of the laws of 1989 to add days of disability for family care shall commence at the start of the leave period taken by the employee to provide family care.

Subdivision 2 provides the weekly benefit which the disabled worker is entitled to receive shall increase in 3 steps annually starting on October 1st 2009 to reach an amount equal to fifty percent of the average weekly wage and thereafter that the weekly benefit shall be adjusted annually to fifty percent of the average weekly wage as determined by the Labor Department.

Subdivision 3 provides that the employee utilizing paid family leave shall have the benefit computed in the same manner as the disability benefit payable pursuant to subdivision one and two of this section and shall be computed at the same time and in the same manner as any subsequent adjustments to the disability benefit provided in section.

Section 8 Subdivisions 1,2,3,4,7 and 8 of section 205 of the workers' compensation law, subdivision 1 as amended by chapter 65 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 1949 and as renumbered by chapter 352 of the laws of 1981, are amended and a new subdivision 9 is added:

Section 8 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 13 weeks for family leave. It also states that no benefit 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 9 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 10. Section 209 of the workers' compensation law is amended to provide the employee contribution to the cost of family leave shall be calculated in the same manner and in the same amount of the continuation described in subdivision three of this section.

Section 11 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 12 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 costs, unless there is a collectively negotiated agreement otherwise.

Section 13 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 14 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 15 provides that in the case of disability resulting from sickness or injury, a statement of disability by the employee's attending health care provider may be required by the employer, carrier or chair no more than one a week. In the case of family care for bonding with a new child, a birth certificate, certificate of adoption, or other competent evidence showing 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; in the case of benefits for care of a family member with a serious condition a statement by the family member's health care provider, and a statement subscribed by the employee and affirmed by him or her as true under penalty of perjury that the employee is primary care giver for the family member during disability.

Section 16 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 17 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 18 of the bill adds a new section 239-a to the WCL. This section provides for the creation of a thirteen member family care advisory council, which will issue reports on various issues relating to the family care benefit.

Section 19 provides that section 1113 of the insurance law is amended to include any insurance under that article for family care benefits, disability benefits resulting from sickness or injury, or both as accident and health insurance.

Section 20 Effective date

JUSTIFICATION :

The weekly benefit for temporary disability insurance has not been raised in 20 years. This bill raises the benefit to one half of the average weekly wage, as calculated by the Department of Labor and indexes the benefit thereafter. Temporary disability insurance provides income maintenance for illness or injury occurring during the course of non working hours.

In addition to the above adjustment the paid family leave program is expanded to cover leave for child care, adoption, foster-care, and care for enumerated sick family members. The benefit provided equals that of temporary disability and is calculated in the same manner and at the same time as temporary disability. The duration of the benefit, 13 weeks, is half that of temporary disability. All workers covered for temporary disability are covered for paid family leave. All public employees not currently covered may opt for coverage through available collective bargaining mechanisms. Public employees may also opt out in a similar manner. Public employees may be required to contribute to the cost of the benefit in the same manner as is provided for all other covered employees in the law.

PRIOR LEGISLATIVE HISTORY :

2008: S.8428 Referred to Rules

FISCAL IMPLICATION :

The premium collected for the Temporary Disability Insurance has built up large reserves over the last twenty years, and it is anticipated that the first year cost of an increase will be minimal. The paid family leave benefit has not been rated yet, but preliminary estimates suggest that the benefit will cost no more than the current TDI benefit, and probably a lot less if other states' experience is taken into account.

EFFECTIVE DATE : This act shall take effect October 1, 2009; provided, however, that: (a) paragraph a of subdivision 3 of section 211-a of the workers' compensation law, as added by section twelve of this act allowing public employees to opt in to family care benefits prior to July 1, 2010, shall take effect immediately; and (b) 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 authorized and directed to be made and completed on or before such effective date.

Text

STATE OF NEW YORK ________________________________________________________________________ 1824 2009-2010 Regular Sessions IN SENATE February 9, 2009 ___________
Introduced by Sens. MORAHAN, BONACIC, VOLKER -- 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 temporary disability benefits and 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 nine new subdivisions 15, 16, 17, 18, 19, 20, 21, 22 and 23 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 PSYCHOLOG- ICAL CARE, FOR A FAMILY MEMBER OF THE EMPLOYEE MADE NECESSARY BY A SERI- OUS 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: 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. S 4. Subdivision 6 of section 201 of the workers' compensation law is amended by adding a new paragraph E to read as follows: E. BENEFITS FOR PAID FAMILY LEAVE SHALL BE PAID TO ALL ELIGIBLE EMPLOYEES IN THE SAME MANNER AS PROVIDED IN THE PRECEDING PARAGRAPHS OF THIS SUBDIVISION. S 5. Section 203 of the workers' compensation law, as amended by chap- ter 436 of the laws of 1986, is amended to read as follows: S 203. Employees eligible for benefits under section two hundred four. Employees in employment of a covered employer for four or more consec- utive weeks and employees in employment during the work period usual to and available during such four or more consecutive weeks in any trade or business in which they are regularly employed and in which hiring from day to day of such employees is the usual employment practice shall be eligible for disability benefits as provided in section two hundred four. Every such employee shall continue to be eligible during such employment and for a period of four weeks after such employment termi- nates regardless of whether the employee performs any work for remunera- tion or profit in non-covered employment. If during such four week peri- od the employee performs any work for remuneration or profit for another covered employer the employee shall become eligible for benefits imme- diately with respect to that employment. In addition every such employee who returns to work with the same employer after an agreed and specified unpaid leave of absence or vacation without pay shall become eligible for benefits immediately with respect to such employment. An employee
who during a period in which he or she is eligible to receive benefits under subdivision two of section two hundred seven returns to employment with a covered employer and an employee who is currently receiving unem- ployment insurance benefits or benefits under section two hundred seven and who returns to employment with a covered employer shall become eligible for benefits immediately with respect to such employment. An employee regularly in the employment of a single employer on a work schedule less than the employer's normal work week shall become eligible for benefits on the twenty-fifth day of such regular employment. An employee who becomes disabled while eligible for benefits in the employ- ment of a covered employer shall not be deemed, for the purposes of this article, to have such employment terminated during any period he or she is eligible to receive benefits under section two hundred four with respect to such employment. EMPLOYEES ARE ELIGIBLE FOR PAID FAMILY LEAVE BENEFITS IN THE SAME MANNER AS IS PROVIDED IN THIS SECTION FOR ALL EMPLOYEES IN EMPLOYMENT OF A COVERED EMPLOYER CLAIMING BENEFITS FOR DISABILITY. S 6. The workers' compensation law is amended by adding a new section 203-a to read as follows: S 203-A. EMPLOYEE'S RIGHT TO RESUME EMPLOYMENT. EVERY COVERED EMPLOYEE ELIGIBLE FOR PAID FAMILY LEAVE BENEFITS SHALL HAVE AN INCONTROVERTIBLE RIGHT TO RESUME EMPLOYMENT WITH THE EMPLOYER AT THE CONCLUSION OF THE PAID FAMILY LEAVE IN THE SAME OR SUBSTANTIALLY SIMILAR EMPLOYMENT AS WAS THE CASE ON THE DAY THE PERIOD OF PAID FAMILY LEAVE COMMENCED. S 7. Section 204 of the workers' compensation law, as added by chapter 600 of the laws of 1949 and subdivision 2 as amended by chapter 38 of the laws of 1989, is amended to read as follows: S 204. Disability during employment. 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 dura- tion and other conditions and limitations in this section and in sections two hundred five and two hundred six OF THIS ARTICLE. Succes- sive periods of disability caused by the same or related injury or sick- ness OR REASON FOR FAMILY CARE shall be deemed a single period of disa- bility 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. 2. [The weekly benefit which the disabled employee is entitled to receive for disability commencing on or after May first, nineteen hundred eighty-nine shall be one-half of the employee's weekly wage, but in no case shall such benefit exceed one hundred seventy dollars; except that if the employee's average weekly wage is less than twenty dollars, the benefit shall be such average weekly wage. The weekly benefit which the disabled employee is entitled to receive for disability commencing on or after July first, nineteen hundred eighty-four shall be one-half of the employee's weekly wage, but in no case shall such benefit exceed one hundred forty-five dollars; except that if the employee's average weekly wage is less than twenty dollars, the benefit shall be such aver- age weekly wage. The weekly benefit which the disabled employee is enti- tled to receive for disability commencing on or after July first, nine- teen hundred eighty-three and prior to July first, nineteen hundred eighty-four shall be one-half of the employee's average weekly wage, but in no case shall such benefit exceed one hundred thirty-five dollars nor
be less than twenty dollars; except that if the employee's average week- ly wage is less than twenty dollars the benefit shall be such average weekly wage. The weekly benefit which the disabled employee is entitled to receive for disability commencing on or after July first, nineteen hundred seventy-four, and prior to July first, nineteen hundred eighty- three, shall be one-half of the employee's average weekly wage, but in no case shall such benefit exceed ninety-five dollars nor be less than twenty dollars; except that if the employee's average weekly wage is less than twenty dollars, the benefit shall be such average weekly wage. The weekly benefit which the disabled employee is entitled to receive for disability commencing on or after July first, nineteen hundred seventy and prior to July first, nineteen hundred seventy-four shall be one-half of the employee's average weekly wage, but in no case shall such benefit exceed seventy-five dollars nor be less than twenty dollars; except that if the employee's average weekly wage is less than twenty dollars the benefit shall be such average weekly wage. For any period of disability less than a full week, the benefits payable shall be calculated by dividing the weekly benefit by the number of the employee's normal work days per week and multiplying the quotient by the number of normal work days in such period of disability. The weekly benefit for a disabled employee who is concurrently eligible for bene- fits in the employment of more than one covered employer shall, within the maximum and minimum herein provided, be one-half of the total of the employee's average weekly wages received from all such covered employ- ers, and shall be allocated in the proportion of their respective aver- age weekly wage payments]
THE WEEKLY BENEFIT WHICH THE DISABLED WORKER IS ENTITLED TO RECEIVE FOR DISABILITY COMMENCING (I) ON OR AFTER OCTOBER FIRST, TWO THOUSAND TEN, AND PRIOR TO OCTOBER FIRST, TWO THOUSAND ELEVEN SHALL NOT EXCEED ONE-HALF OF THE EMPLOYEE'S WEEKLY WAGE, NOT TO EXCEED A MAXIMUM BENEFIT OF THREE HUNDRED FORTY DOLLARS AND (II) ON OR AFTER OCTOBER FIRST, TWO THOUSAND ELEVEN, AND PRIOR TO OCTOBER FIRST, TWO THOUSAND TWELVE THE WEEKLY BENEFIT SHALL NOT EXCEED HALF OF THE EMPLOY- EE'S WEEKLY WAGE, NOT TO EXCEED A MAXIMUM BENEFIT OF FIVE HUNDRED FIFTY DOLLARS, AND (III) ON OR AFTER OCTOBER FIRST, TWO THOUSAND TWELVE, AND ON OCTOBER FIRST OF EACH SUCCEEDING YEAR, THE EMPLOYEES' BENEFIT SHALL NOT EXCEED ONE-HALF OF THE EMPLOYEE'S WEEKLY WAGE, NOT TO EXCEED ONE-HALF OF THE NEW YORK STATE AVERAGE WEEKLY WAGE AS DETERMINED BY THE STATE DEPARTMENT OF LABOR ANNUALLY PURSUANT TO SUBDIVISION SIXTEEN OF SECTION TWO OF THIS CHAPTER. 3. THE WEEKLY BENEFIT WHICH THE EMPLOYEE UTILIZING PAID FAMILY LEAVE IS ENTITLED TO RECEIVE COMMENCING ON THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND NINE WHICH ADDED THIS SUBDIVISION SHALL BE COMPUTED IN THE SAME MANNER AS THE DISABILITY BENEFIT PAYABLE PURSUANT TO SUBDIVISIONS ONE AND TWO OF THIS SECTION AND SHALL BE COMPUTED AND INCREASED AT THE SAME TIME AND IN THE SAME MANNER AS ANY SUBSEQUENT ADJUSTMENTS TO THE DISABILITY BENEFIT PROVIDED FOR IN THIS SECTION. S 8. 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 1949 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 THIRTEEN 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 9. 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 10. Section 209 of the workers' compensation law is amended by adding a new subdivision 3-a to read as follows: 3-A. THE CONTRIBUTION OF EACH EMPLOYEE TO THE COST OF FAMILY LEAVE SHALL BE CALCULATED IN THE SAME MANNER AND IN THE SAME AMOUNT OF THE CONTRIBUTION DESCRIBED IN SUBDIVISION THREE OF THIS SECTION. S 11. 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 12. 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: A. UPON NOTICE GIVEN TO THE PUBLIC EMPLOYER PRIOR TO APRIL FIRST, TWO THOUSAND TEN, WHICH OPT IN SHALL BECOME EFFECTIVE ONLY ON JULY FIRST, TWO THOUSAND TEN; 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 SUBDIVISION. 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 AMOUNT REQUIRED TO PROVIDE THE BENEFIT IN ACCORD- ANCE WITH THE PROCEDURE SET FORTH IN SECTION TWO HUNDRED NINE OF THIS ARTICLE. S 13. 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 OCTOBER FIRST, TWO THOUSAND NINE SHALL BE EFFECTIVE ON SUCH DATE. S 14. 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] 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 15. Subdivision 1 of section 217 of the workers' compensation law, as amended by chapter 167 of the laws of 1999, is 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] HEALTH CARE PROVID- ER; (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 paid 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. S 16. 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] HEALTH CARE PROVIDER'S statement, wage and employment data and all other papers in the possession of the employer or carrier with respect to such claim. S 17. 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- 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 TYPEWRITTEN, PRINTED OR ELECTRONIC NOTICE IN A FORM PRESCRIBED BY THE CHAIR, STATING THAT THE EMPLOYER HAS PROVIDED FOR THE PAYMENT OF DISA- BILITY BENEFITS AS REQUIRED BY THIS ARTICLE WITHIN THIRTY DAYS OF THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND NINE 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 18. 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. 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 REPRESEN- TATIVE OF UNIONS REPRESENTING WORKERS EMPLOYED IN THE PRIVATE SECTOR; TWO WHO ARE REPRESENTATIVES OF ORGANIZATIONS THAT REPRESENT EITHER COVERED BUSINESS OR PUBLIC EMPLOYERS IN NEW YORK STATE PARTICIPATING IN THE PAID FAMILY LEAVE PLAN; TWO ON NOMINATION 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 NOMI- NATION 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 SUPERINTENDENT 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' COMPEN- SATION BOARD SHALL PROVIDE ALL NECESSARY PERSONNEL AND LOGISTICAL SUPPORT AS MAY BE NECESSARY TO COMPLETE THE DUTIES OF THE ADVISORY COUN- CIL. THE COUNCIL 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 BENEFIT; FUNDING OF THE BENEFIT INCLUDING PASS-THROUGH COSTS; POSSIBLE STATUTORY AMENDMENTS AND REGULATORY CHANG- ES; USAGE RATES; OUTREACH. ANY SUCH RECOMMENDATIONS OR REPORTS SHALL BE PROVIDED TO THE GOVERNOR, 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 APPOINT- MENT TO FILL A VACANCY SHALL BE MADE FOR THE REMAINDER OF THE AFFECTED TERM. MEMBERS SHALL RECEIVE NO COMPENSATION. S 19. Paragraph 3 of subsection (a) of section 1113 of the insurance law is amended to read 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 RESULTING 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 20. This act shall take effect October 1, 2009; provided, however, that: (a) paragraph a of subdivision 3 of section 211-a of the workers' compensation law, as added by section twelve of this act allowing public employees to opt in to family care benefits prior to July 1, 2010, shall take effect immediately; and (b) 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.

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