Text of NY A 8742 (2010)

S T A T E O F N E W Y O R K ________________________________________________________________________ 8742 2009-2010 Regular Sessions I N A S S E M B L Y June 5, 2009 ___________ Introduced by M. of A. SILVER, JOHN, NOLAN -- Multi-Sponsored by -- M. of A. BENEDETTO, BING, BOYLAND, DESTITO, DINOWITZ, FARRELL, GLICK, JACOBS, LANCMAN, LENTOL, MARKEY, O'DONNELL, PEOPLES, PHEFFER, ROBIN- SON, ROSENTHAL, SWEENEY, TOWNS, WEINSTEIN, WEISENBERG -- read once and referred to the Committee on Labor AN ACT to amend the workers' compensation law and the insurance law, in relation to providing benefits for injury or sickness, pregnancy or family leave 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 two new paragraphs C and D to read as follows: 3 C. "DISABILITY" ALSO INCLUDES FAMILY CARE, AS DEFINED IN SUBDIVISION 4 FIFTEEN OF THIS SECTION. 5 D. UNLESS OTHERWISE SET FORTH IN THIS ARTICLE, ALL PROVISIONS OF THIS 6 ARTICLE APPLICABLE TO "DISABILITY" SHALL APPLY TO (I) DISABILITY ARISING 7 FROM INJURY OR SICKNESS; (II) DISABILITY CAUSED BY OR IN CONNECTION WITH 8 PREGNANCY; AND (III) FOR FAMILY CARE. 9 S 2. Subdivision 14 of section 201 of the workers' compensation law, 10 as added by chapter 600 of the laws of 1949 and as renumbered by chapter 11 438 of the laws of 1964, is amended to read as follows: 12 14. "A day of disability" means any day on which the employee was 13 prevented from performing work because of disability, INCLUDING ANY DAY 14 ON WHICH THE EMPLOYEE TOOK OFF FOR FAMILY CARE, and for which [he] THE 15 EMPLOYEE has not received his OR HER regular remuneration. 16 S 3. Section 201 of the workers' compensation law is amended by adding 17 ten new subdivisions 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 to read 18 as follows: 19 15. "FAMILY CARE" SHALL MEAN ANY LEAVE TAKEN BY AN EMPLOYEE FROM WORK: EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11260-04-9 A. 8742 2 1 A. TO PARTICIPATE IN PROVIDING CARE, INCLUDING PHYSICAL OR PSYCHOLOG- 2 ICAL CARE, FOR A FAMILY MEMBER OF THE EMPLOYEE MADE NECESSARY BY A SERI- 3 OUS HEALTH CONDITION OF THE FAMILY MEMBER; OR 4 B. TO BOND WITH HIS OR HER CHILD DURING THE FIRST TWELVE MONTHS AFTER 5 THE CHILD'S BIRTH, OR THE FIRST TWELVE MONTHS AFTER THE PLACEMENT OF THE 6 CHILD FOR ADOPTION OR FOSTER CARE WITH THE EMPLOYEE. 7 16. "CHILD" MEANS A BIOLOGICAL, ADOPTED, OR FOSTER CHILD, A STEPCHILD, 8 A LEGAL WARD, OR A CHILD OF A PERSON STANDING IN LOCO PARENTIS, WHO IS: 9 A. UNDER EIGHTEEN YEARS OF AGE; OR 10 B. EIGHTEEN YEARS OF AGE OR OLDER AND INCAPABLE OF SELF-CARE BECAUSE 11 OF A MENTAL OR PHYSICAL DISABILITY. 12 17. "DOMESTIC PARTNER" HAS THE MEANING SET FORTH IN SECTION FOUR OF 13 THIS CHAPTER. 14 18. "SERIOUS HEALTH CONDITION" MEANS AN ILLNESS, INJURY, IMPAIRMENT, 15 OR PHYSICAL OR MENTAL CONDITION THAT: 16 A. REQUIRES INPATIENT CARE IN A HOSPITAL, HOSPICE OR RESIDENTIAL 17 HEALTH CARE FACILITY; OR 18 B. REQUIRES CONTINUING TREATMENT BY A HEALTH CARE PROVIDER. 19 19. "PARENT" MEANS THE BIOLOGICAL, ADOPTIVE, OR FOSTER PARENT OF AN 20 EMPLOYEE OR INDIVIDUAL WHO STOOD IN LOCO PARENTIS TO AN EMPLOYEE WHEN 21 THE EMPLOYEE WAS A SON OR DAUGHTER. 22 20. "FAMILY MEMBER" MEANS A CHILD, SPOUSE, DOMESTIC PARTNER, PARENT, 23 GRANDCHILD, GRANDPARENT, MOTHER-IN-LAW, FATHER-IN-LAW OR MOTHER AND/OR 24 FATHER OF DOMESTIC PARTNER. 25 21. PERSONS WHO ARE "IN LOCO PARENTIS" INCLUDE THOSE WITH DAY-TO-DAY 26 RESPONSIBILITIES TO CARE FOR AND FINANCIALLY SUPPORT A CHILD OR, IN THE 27 CASE OF AN EMPLOYEE, WHO HAD SUCH RESPONSIBILITY FOR THE EMPLOYEE WHEN 28 THE EMPLOYEE WAS A CHILD. A BIOLOGICAL OR LEGAL RELATIONSHIP IS NOT 29 NECESSARY. 30 22. "GRANDCHILD" MEANS THE CHILD OF A CHILD. 31 23. "HEALTH CARE PROVIDER" MEANS ANY PROVIDER TREATING AN EMPLOYEE'S 32 INJURY OR SICKNESS, OR A FAMILY MEMBER'S SERIOUS HEALTH CONDITION, 33 INCLUDING A PHYSICIAN, PODIATRIST, CHIROPRACTOR, DENTIST, PSYCHOLOGIST, 34 CERTIFIED NURSE MIDWIFE, OR IN THE CASE OF A FAMILY MEMBER WHO ADHERES 35 TO THE FAITH OR TEACHINGS OF ANY CHURCH OR DENOMINATION, AND WHO IN 36 ACCORDANCE WITH ITS CREED, TENETS OR PRINCIPLES DEPENDS FOR HEALING UPON 37 PRAYER THROUGH SPIRITUAL MEANS ALONE IN THE PRACTICE OF RELIGION, BY AN 38 ACCREDITED PRACTITIONER, CONTAINING FACTS AND OPINIONS AS TO SUCH HEALTH 39 CONDITION IN COMPLIANCE WITH REGULATIONS OF THE CHAIR. 40 24. "FAMILY CARE COST" SHALL MEAN: 41 A. PRIOR TO JULY FIRST, TWO THOUSAND ELEVEN, FORTY-FIVE CENTS PER 42 WEEK; AND 43 B. DURING EVERY SUBSEQUENT YEAR COMMENCING ON JULY FIRST SUCH AMOUNT 44 AS SHALL BE SET BY REGULATION OF THE SUPERINTENDENT OF INSURANCE FOLLOW- 45 ING CONSULTATION WITH THE FAMILY CARE ADVISORY COUNCIL BY APRIL FIRST OF 46 THE SAME YEAR BASED ON HIS OR HER ACTUARIALLY SOUND ESTIMATION OF THE 47 COST PER EMPLOYEE OF PROVIDING FAMILY CARE BENEFITS, BUT IN NO EVENT 48 MORE THAN ONE HUNDRED FIFTEEN PERCENT OF HIS OR HER ESTIMATION OF THE 49 COST PER EMPLOYEE OF PROVIDING FAMILY CARE BENEFITS THROUGH THE STATE 50 INSURANCE FUND. 51 S 3-a. The workers' compensation law is amended by adding a new 52 section 203-a to read as follows: 53 S 203-A. RETALIATORY ACTION PROHIBITED. 1. THE PROVISIONS OF SECTION 54 ONE HUNDRED TWENTY OF THIS CHAPTER AND SECTION TWO HUNDRED FORTY-ONE OF 55 THIS ARTICLE SHALL BE APPLICABLE TO FAMILY CARE LEAVE AS FULLY AS IF SET 56 FORTH IN THIS SECTION. A. 8742 3 1 2. NOTHING IN THIS SECTION SHALL BE DEEMED TO DIMINISH THE RIGHTS, 2 PRIVILEGES, OR REMEDIES OF ANY EMPLOYEE UNDER ANY COLLECTIVE BARGAINING 3 AGREEMENT OR EMPLOYMENT CONTRACT; EXCEPT THAT THE INSTITUTION OF AN 4 ACTION IN ACCORDANCE WITH THIS SECTION SHALL BE DEEMED A WAIVER OF THE 5 RIGHTS AND REMEDIES AVAILABLE UNDER ANY OTHER CONTRACT OR COLLECTIVE 6 BARGAINING AGREEMENT. 7 S 3-b. The workers' compensation law is amended by adding a new 8 section 203-b to read as follows: 9 S 203-B. FAMILY CARE LEAVE. ANY ELIGIBLE EMPLOYEE OF A COVERED EMPLOY- 10 ER WHO HAS IN EMPLOYMENT AFTER JANUARY FIRST, TWO THOUSAND TEN 11 TWENTY-FIVE OR MORE EMPLOYEES ON EACH OF AT LEAST THIRTY DAYS IN ANY 12 CALENDAR YEAR WHO TAKES LEAVE UNDER THIS SECTION SHALL BE ENTITLED, ON 13 RETURN FROM SUCH LEAVE, TO BE RESTORED BY THE EMPLOYER TO THE POSITION 14 OF EMPLOYMENT HELD BY THE EMPLOYEE WHEN THE LEAVE COMMENCED, OR TO BE 15 RESTORED TO A COMPARABLE POSITION WITH COMPARABLE EMPLOYMENT BENEFITS, 16 PAY AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT. THE TAKING OF LEAVE 17 FOR THE PURPOSE OF FAMILY CARE SHALL NOT RESULT IN THE LOSS OF ANY 18 EMPLOYMENT BENEFIT ACCRUED PRIOR TO THE DATE ON WHICH THE LEAVE 19 COMMENCED. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO ENTITLE ANY 20 RESTORED EMPLOYEE TO THE ACCRUAL OF ANY SENIORITY OR EMPLOYMENT BENEFITS 21 DURING ANY PERIOD OF LEAVE, OR ANY RIGHT, BENEFIT OR POSITION TO WHICH 22 THE EMPLOYEE WOULD HAVE BEEN ENTITLED HAD THE EMPLOYEE NOT TAKEN THE 23 LEAVE. A VIOLATION OF THIS SECTION SHALL BE A VIOLATION OF SECTION ONE 24 HUNDRED TWENTY OF THIS CHAPTER AND ALL REMEDIES AND PENALTIES AVAILABLE 25 UNDER SECTION ONE HUNDRED TWENTY OF THIS CHAPTER SHALL BE AVAILABLE FOR 26 VIOLATIONS OF THIS SECTION AS FULLY AS IF SET FORTH IN THIS SECTION. 27 S 3-c. The section heading and the first undesignated paragraph of 28 section 120 of the workers' compensation law, as amended by chapter 61 29 of the laws of 1989, are amended to read as follows: 30 Discrimination against employees [who bring proceedings]. It shall be 31 unlawful for any employer or his or her duly authorized agent to 32 discharge or in any other manner discriminate against an employee as to 33 his or her employment because such employee has claimed or attempted to 34 claim compensation from such employer, OR CLAIMED OR ATTEMPTED TO CLAIM 35 ANY BENEFITS PROVIDED UNDER THIS CHAPTER, or because he or she has 36 testified or is about to testify in a proceeding under this chapter and 37 no other valid reason is shown to exist for such action by the employer. 38 S 4. Subdivision 1 of section 204 of the workers' compensation law, as 39 added by chapter 600 of the laws of 1949, is amended and a new subdivi- 40 sion 3 is added to read as follows: 41 1. Disability benefits shall be payable to an eligible employee for 42 disabilities commencing after June thirtieth, nineteen hundred fifty, 43 beginning with the eighth consecutive day of disability and thereafter 44 during the continuance of disability, subject to the limitations as to 45 maximum and minimum amounts and duration and other conditions and limi- 46 tations in this section and in sections two hundred five and two hundred 47 six OF THIS ARTICLE. Successive periods of disability caused by the 48 same or related injury or sickness OR REASON FOR FAMILY CARE shall be 49 deemed a single period of disability only if separated by less than 50 three months. 51 3. THE WEEKLY BENEFIT WHICH THE DISABLED EMPLOYEE IS ENTITLED TO 52 RECEIVE FOR DISABILITY COMMENCING ON OR AFTER JANUARY FIRST, TWO THOU- 53 SAND TEN SHALL BE FIFTY PERCENT OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE, 54 BUT IN NO CASE SHALL SUCH BENEFIT EXCEED THIRTY-FIVE PERCENT OF THE 55 STATEWIDE AVERAGE WEEKLY WAGE AS DETERMINED BY THE STATE DEPARTMENT OF 56 LABOR PURSUANT TO SUBDIVISION SIXTEEN OF SECTION TWO OF THIS CHAPTER. A. 8742 4 1 THE WEEKLY BENEFIT WHICH THE DISABLED EMPLOYEE IS ENTITLED TO RECEIVE 2 FOR DISABILITY COMMENCING ON OR AFTER APRIL FIRST, TWO THOUSAND ELEVEN 3 SHALL BE FIFTY PERCENT OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE, BUT IN NO 4 CASE SHALL SUCH BENEFIT EXCEED FORTY PERCENT OF THE STATEWIDE AVERAGE 5 WEEKLY WAGE AS DETERMINED BY THE STATE DEPARTMENT OF LABOR PURSUANT TO 6 SUBDIVISION SIXTEEN OF SECTION TWO OF THIS CHAPTER. THE WEEKLY BENEFIT 7 WHICH THE DISABLED EMPLOYEE IS ENTITLED TO RECEIVE FOR DISABILITY 8 COMMENCING ON OR AFTER APRIL FIRST, TWO THOUSAND TWELVE SHALL BE FIFTY 9 PERCENT OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE BUT IN NO CASE SHALL SUCH 10 BENEFIT EXCEED FORTY-FIVE PERCENT OF THE STATEWIDE AVERAGE WEEKLY WAGE 11 AS DETERMINED BY THE STATE DEPARTMENT OF LABOR PURSUANT TO SUBDIVISION 12 SIXTEEN OF SECTION TWO OF THIS CHAPTER. THE WEEKLY BENEFIT WHICH THE 13 DISABLED EMPLOYEE IS ENTITLED TO RECEIVE FOR DISABILITY COMMENCING ON OR 14 AFTER APRIL FIRST, TWO THOUSAND THIRTEEN AND SUBSEQUENTLY SHALL BE FIFTY 15 PERCENT OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE BUT IN NO CASE SHALL SUCH 16 BENEFIT EXCEED FIFTY PERCENT OF THE STATEWIDE AVERAGE WEEKLY WAGE AS 17 DETERMINED BY THE STATE DEPARTMENT OF LABOR PURSUANT TO SUBDIVISION 18 SIXTEEN OF SECTION TWO OF THIS CHAPTER. 19 S 5. Subdivisions 1, 2, 3, 4, 7 and 8 of section 205 of the workers' 20 compensation law, subdivision 1 as amended by chapter 651 of the laws of 21 1958, subdivision 2 as amended by chapter 270 of the laws of 1990 and 22 subdivisions 3, 4, 7 and 8 as added by chapter 600 of the laws of 1949 23 and as renumbered by chapter 352 of the laws of 1981, are amended and a 24 new subdivision 9 is added to read as follows: 25 1. (A) For DISABILITY RESULTING FROM INJURY OR SICKNESS OR PREGNANCY 26 OF AN EMPLOYEE, FOR more than twenty-six weeks during a period of 27 fifty-two consecutive calendar weeks or during any one period of disa- 28 bility; OR 29 (B) FOR FAMILY CARE, FOR MORE THAN TWELVE WEEKS DURING A PERIOD OF 30 FIFTY-TWO CONSECUTIVE CALENDAR WEEKS OR DURING ANY ONE PERIOD OF FAMILY 31 CARE; 32 2. for any period of disability RESULTING FROM THE INJURY OR SICKNESS 33 OR PREGNANCY OF AN EMPLOYEE during which an employee is not under the 34 care of a duly licensed physician or with respect to disability result- 35 ing from a condition of the foot which may lawfully be treated by a duly 36 registered and licensed podiatrist of the state of New York or with 37 respect to a disability resulting from a condition which may lawfully be 38 treated by a duly registered and licensed chiropractor of the state of 39 New York or with respect to a disability resulting from a condition 40 which may lawfully be treated by a duly licensed dentist of the state of 41 New York or with respect to a disability resulting from a condition 42 which may lawfully be treated by a duly registered and licensed psychol- 43 ogist of the state of New York or with respect to a disability resulting 44 from a condition which may lawfully be treated by a duly certified nurse 45 midwife, for any period of such disability during which an employee is 46 neither under the care of a physician nor a podiatrist, nor a chiroprac- 47 tor, nor a dentist, nor a psychologist, nor a certified nurse midwife; 48 and for any period of disability during which an employee who adheres to 49 the faith or teachings of any church or denomination and who in accord- 50 ance with its creed, tenets or principles depends for healing upon pray- 51 er through spiritual means alone in the practice of religion, is not 52 under the care of a practitioner duly accredited by the church or denom- 53 ination, and provided such employee shall submit to all physical exam- 54 inations as required by this chapter[.]; 55 3. for any disability RESULTING FROM INJURY OR SICKNESS OF AN EMPLOYEE 56 occasioned by the wilful intention of the employee to bring about injury A. 8742 5 1 to or the sickness of himself or another, or resulting from any injury 2 or sickness sustained in the perpetration by the employee of an illegal 3 act; 4 4. for any day of disability during which the employee performed work 5 for remuneration or profit; BUT NOT INCLUDING ANY REMUNERATION RECEIVED 6 FOR CARING FOR A FOSTER OR ADOPTED CHILD OR OTHER INDIVIDUAL RESIDING IN 7 THE EMPLOYEE'S PLACE OF RESIDENCE; 8 7. for any disability due to any act of war, declared or undeclared, 9 if such act shall occur after June thirtieth, nineteen hundred fifty, 10 EXCEPT THAT NOTHING IN THIS SUBDIVISION SHALL BAR AN EMPLOYEE FROM 11 RECEIVING BENEFITS UNDER THIS ARTICLE FOR CARE OF A FAMILY MEMBER DISA- 12 BLED DUE TO AN ACT OF WAR; 13 8. for any disability RESULTING FROM AN INJURY OR SICKNESS TO OR PREG- 14 NANCY OF THE EMPLOYEE commencing before the employee becomes eligible to 15 benefits hereunder [or commencing prior to July first, nineteen hundred 16 fifty, but this shall not preclude benefits for recurrence after July 17 first, nineteen hundred fifty, of a disability commencing prior there- 18 to.]; 19 9. FOR ANY DAY OF ABSENCE FROM WORK REQUIRED PURSUANT TO ANY DISCIPLI- 20 NARY PROCESS; OR, IN REGARD TO FAMILY CARE BENEFITS, ANY DAY OF ABSENCE 21 FROM WORK RESULTING FROM INJURY OR SICKNESS TO OR PREGNANCY OF THE 22 EMPLOYEE, INCLUDING ANY LEAVE TAKEN UNDER SECTION SEVENTY-ONE OR SEVEN- 23 TY-THREE OF THE CIVIL SERVICE LAW. 24 S 6. The workers' compensation law is amended by adding a new section 25 205-a to read as follows: 26 S 205-A. RELATIONSHIP BETWEEN DISABILITY BENEFITS FOR FAMILY CARE AND 27 FOR THE EMPLOYEE'S OWN INJURY OR SICKNESS OR PREGNANCY. THE RECEIPT OF 28 BENEFITS FOR DISABILITY RESULTING FROM INJURY OR SICKNESS TO THE EMPLOY- 29 EE, OR PREGNANCY OF THE EMPLOYEE, SHALL NOT COUNT TOWARD ANY TIME LIMI- 30 TATION UNDER SUBDIVISION ONE OF SECTION TWO HUNDRED FIVE OF THIS ARTICLE 31 ON THE RECEIPT OF BENEFITS FOR FAMILY CARE, AND THE RECEIPT OF BENEFITS 32 FOR FAMILY CARE SHALL NOT COUNT TOWARD ANY TIME LIMITATION UNDER SUBDI- 33 VISION ONE OF SECTION TWO HUNDRED FIVE OF THIS ARTICLE ON THE RECEIPT OF 34 BENEFITS FOR DISABILITY RESULTING FROM INJURY OR SICKNESS OR PREGNANCY 35 TO THE EMPLOYEE, EXCEPT THAT AN EMPLOYEE MAY RECEIVE DISABILITY BENEFITS 36 ON ONLY ONE CLAIM AT ANY TIME. 37 S 7. Subdivision 3 of section 209 of the workers' compensation law, as 38 amended by chapter 415 of the laws of 1983, is amended to read as 39 follows: 40 3. The contribution of each such employee to the cost of disability 41 benefits provided by this article shall be one-half of one per centum of 42 the employee's wages paid to him on and after July first, nineteen 43 hundred fifty, but not in excess of sixty cents per week FOR THE COST OF 44 DISABILITY BENEFITS FOR INJURY OR SICKNESS TO, OR PREGNANCY OF THE 45 EMPLOYEE PLUS THE FAMILY CARE COST, AS DEFINED IN SUBDIVISION 46 TWENTY-FOUR OF SECTION TWO HUNDRED ONE OF THIS ARTICLE. 47 S 7-a. Section 211 of the workers' compensation law is amended by 48 adding two new subdivisions 7 and 8 to read as follows: 49 7. SUCH FAMILY CARE BENEFITS AS ARE PROVIDED FOR IN THIS ARTICLE SHALL 50 BE IN ADDITION TO, AND SHALL NOT AMEND, REPEAL OR REPLACE, THE TERMS OF 51 ANY AGREEMENT THAT IS COLLECTIVELY NEGOTIATED BETWEEN AN EMPLOYER AND 52 AN EMPLOYEE ORGANIZATION, INCLUDING AGREEMENT OR INTEREST ARBITRATION 53 AWARDS MADE PURSUANT TO ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW. 54 8. NOTHING IN THIS ARTICLE SHALL REQUIRE AN EMPLOYER TO USE THE SAME 55 CARRIER TO PROVIDE BENEFITS REQUIRED BY OR PERMISSIBLE UNDER THIS ARTI- 56 CLE FOR DISABILITY RESULTING FROM INJURY OR SICKNESS TO OR PREGNANCY OF A. 8742 6 1 THE EMPLOYEE AS IT USES TO PROVIDE BENEFITS REQUIRED BY OR PERMISSIBLE 2 UNDER THIS ARTICLE FOR FAMILY CARE. AN EMPLOYER MAY USE A DIFFERENT 3 MEANS, AMONG THOSE SET FORTH IN SUBDIVISIONS ONE THROUGH FIVE OF THIS 4 SECTION, TO PROVIDE BENEFITS REQUIRED BY THIS ARTICLE FOR DISABILITY 5 RESULTING FROM INJURY OR SICKNESS TO OR PREGNANCY OF THE EMPLOYEE, FROM 6 THE MEANS USED TO PROVIDE BENEFITS REQUIRED BY THIS ARTICLE FOR FAMILY 7 CARE. 8 S 7-b. The workers' compensation law is amended by adding a new 9 section 211-a to read as follows: 10 S 211-A. PUBLIC EMPLOYEES; EMPLOYEE OPT IN. 1. FOR PURPOSES OF THIS 11 SECTION, "PUBLIC EMPLOYEE" MEANS ANY EMPLOYEE OF THE STATE, ANY POLI- 12 TICAL SUBDIVISION OF THE STATE, A PUBLIC AUTHORITY OR ANY OTHER GOVERN- 13 MENTAL AGENCY OR INSTRUMENTALITY. "PUBLIC EMPLOYER" MEANS THE STATE, ANY 14 POLITICAL SUBDIVISION OF THE STATE, A PUBLIC AUTHORITY OR ANY OTHER 15 GOVERNMENTAL AGENCY OR INSTRUMENTALITY THEREOF. "EMPLOYEE ORGANIZATION" 16 SHALL HAVE THE MEANING SET FORTH IN SECTION TWO HUNDRED ONE OF THE CIVIL 17 SERVICE LAW. 18 2. PUBLIC EMPLOYERS SHALL PROVIDE BENEFITS FOR FAMILY CARE TO PUBLIC 19 EMPLOYEES WHERE AN EMPLOYEE ORGANIZATION THAT REPRESENTS THOSE EMPLOYEES 20 OPTS IN TO FAMILY CARE IN ACCORDANCE WITH THE PROCEDURES AND TERMS SET 21 FORTH IN SUBDIVISION THREE OF THIS SECTION. 22 3. AN EMPLOYEE ORGANIZATION MAY OPT IN TO THE FAMILY CARE BENEFIT ON 23 BEHALF OF THOSE EMPLOYEES IT REPRESENTS: 24 A. UPON NOTICE GIVEN PRIOR TO APRIL FIRST, TWO THOUSAND TEN, WHICH OPT 25 IN SHALL BECOME EFFECTIVE ONLY ON JULY FIRST, TWO THOUSAND TEN; 26 B. AT ANY TIME UPON NINETY DAYS NOTICE FOR ANY EMPLOYER WHO IS NOT 27 PROVIDING DISABILITY BENEFITS FOR INJURY OR SICKNESS TO OR PREGNANCY OF 28 AN EMPLOYEE UNDER SECTION TWO HUNDRED TWELVE OF THIS ARTICLE, OR WHO IS 29 SELF-INSURED FOR SUCH BENEFITS; 30 C. FOR ANY EMPLOYER WHO IS PROVIDING DISABILITY BENEFITS FOR INJURY OR 31 SICKNESS TO OR PREGNANCY OF AN EMPLOYEE UNDER SECTION TWO HUNDRED TWELVE 32 OF THIS ARTICLE, UPON NOTICE AT LEAST NINETY DAYS PRIOR TO THE EXPIRA- 33 TION OF THE EMPLOYER'S INSURANCE POLICY FOR SUCH BENEFITS, WHICH OPT IN 34 SHALL BE EFFECTIVE ONLY FOR THE TIME PERIOD COVERED BY ANY SUBSEQUENT 35 POLICY OR RENEWAL; OR 36 D. AT ANY TIME AS IS MUTUALLY AGREED UPON BETWEEN THE EMPLOYEE ORGAN- 37 IZATION AND ANY PUBLIC EMPLOYER. 38 AN EMPLOYEE ORGANIZATION THAT HAS OPTED IN TO THE FAMILY CARE BENEFIT 39 MAY OPT OUT OF IT WITHIN THE TIME PERIODS, AND EFFECTIVE UPON THE SAME 40 DATES, SET FORTH IN THIS PARAGRAPH. 41 4. IN THE ABSENCE OF ANY CONTRARY STATEMENT IN A COLLECTIVELY NEGOTI- 42 ATED AGREEMENT UNDER ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW, A PUBLIC 43 EMPLOYER MAY REQUIRE PUBLIC EMPLOYEES WHO OPT IN UNDER THIS SECTION TO 44 CONTRIBUTE UP TO THE FAMILY CARE COST, AS DEFINED IN SUBDIVISION TWEN- 45 TY-FOUR OF SECTION TWO HUNDRED ONE OF THIS ARTICLE, PER WEEK IN ACCORD- 46 ANCE WITH THE PROCEDURE SET FORTH IN SECTION TWO HUNDRED NINE OF THIS 47 ARTICLE. 48 S 8. Subdivisions 1 and 2 of section 212 of the workers' compensation 49 law, subdivision 1 as amended by chapter 740 of the laws of 1960 and 50 subdivision 2 as amended by chapter 120 of the laws of 1969, are amended 51 to read as follows: 52 1. Any employer not required by this article to provide for the 53 payment of disability benefits to his employees, or to any class or 54 classes thereof, may become a covered employer or bring within the 55 provisions of this article such employees or class or classes thereof by 56 voluntarily electing to provide for payment of [such] benefits FOR DISA- A. 8742 7 1 BILITY RESULTING FROM INJURY OR SICKNESS TO OR PREGNANCY OF AN EMPLOYEE 2 OR FOR FAMILY CARE, OR BOTH, in one or more of the ways set forth in 3 section two hundred eleven OF THIS ARTICLE; but such election shall be 4 subject to the approval of the chairman, and if the employees are 5 required to contribute to the cost of such benefits the assent within 6 thirty days before such approval is granted, of more than one-half of 7 such employees shall be evidenced to the satisfaction of the chairman. 8 On approval by the chairman of such election to provide benefits, all 9 the provisions of this article shall become and continue applicable as 10 if the employer were a covered employer as defined in this article. The 11 obligation to continue as a covered employer with respect to employees 12 for whom provision of benefits is not required under this article, may 13 be discontinued by such employer on ninety days notice to the chairman 14 in writing and to his employees, after he has provided for payment of 15 benefits for not less than one year and with such provision for payment 16 of obligations incurred on and prior to the termination date as the 17 chairman may approve. ANY ELECTION BY A PUBLIC EMPLOYER TO PROVIDE 18 FAMILY CARE BENEFITS MADE PRIOR TO JULY FIRST, TWO THOUSAND TEN SHALL BE 19 EFFECTIVE ON THAT DATE. 20 2. Notwithstanding the definition of "employer" and "employment" in 21 section two hundred one of this article, THE STATE OR ANY AGENCY THERE- 22 OF, a public authority, a municipal corporation or a fire district or 23 other political subdivision may become a covered employer under this 24 article by complying with the provisions of subdivision one of this 25 section and may discontinue such status only as provided in that subdi- 26 vision. 27 S 8-a. Subdivision 2 of section 76 of the workers' compensation law, 28 as added by chapter 600 of the laws of 1949, is amended to read as 29 follows: 30 2. The purposes of the state insurance fund herein created are hereby 31 enlarged to provide [for the] insurance [by the state insurance fund of] 32 FOR the payment of the benefits required by section two hundred four of 33 this chapter, INCLUDING BENEFITS FOR FAMILY CARE PROVIDED EITHER IN THE 34 SAME POLICY WITH OR IN A SEPARATE POLICY FROM BENEFITS FOR DISABILITY 35 RESULTING FROM INJURY OR SICKNESS TO OR PREGNANCY OF AN EMPLOYEE, AND AS 36 PROVIDED PURSUANT TO SECTION TWO HUNDRED ELEVEN-A OF THIS CHAPTER. A 37 separate fund is hereby created within the state insurance fund, which 38 shall be known as the "disability benefits fund", and which shall 39 consist of all premiums received and paid into said fund on account of 40 such insurance, all securities acquired by and through the use of moneys 41 belonging to said fund and of interest earned upon moneys belonging to 42 said fund and deposited or invested as herein provided. Said disability 43 benefits fund shall be applicable to the payment of benefits, expenses 44 and assessments on account of insurance written pursuant to article nine 45 of this chapter. 46 S 9. Subdivisions 1, 2, 3 and 4 of section 217 of the workers' compen- 47 sation law, subdivision 1 as amended by chapter 167 of the laws of 1999, 48 subdivisions 2 and 3 as amended by chapter 270 of the laws of 1990 and 49 subdivision 4 as added by chapter 600 of the laws of 1949, are amended 50 to read as follows: 51 1. Written notice and proof of disability shall be furnished to the 52 employer by or on behalf of the employee claiming benefits or, in the 53 case of a claimant under section two hundred seven of this article, to 54 the chair, within thirty days after commencement of the period of disa- 55 bility. Additional proof shall be furnished thereafter from time to time A. 8742 8 1 as the employer or carrier or chair may require but not more often than 2 once each week. Such proof shall include: 3 (A) IN THE CASE OF DISABILITY RESULTING FROM INJURY OR SICKNESS TO OR 4 PREGNANCY OF THE EMPLOYEE, a statement of disability by the employee's 5 attending [physician or attending podiatrist or attending chiropractor 6 or attending dentist or attending psychologist or attending certified 7 nurse midwife, or in the case of an employee who adheres to the faith or 8 teachings of any church or denomination, and who in accordance with its 9 creed, tenets or principles depends for healing upon prayer through 10 spiritual means alone in the practice of religion, by an accredited 11 practitioner, containing facts and opinions as to such disability in 12 compliance with regulations of the chair.] HEALTH CARE PROVIDER; 13 (B) IN THE CASE OF FAMILY CARE FOR BONDING WITH A NEW CHILD, A BIRTH 14 CERTIFICATE, CERTIFICATE OF ADOPTION, OR OTHER COMPETENT EVIDENCE SHOW- 15 ING THAT THE EMPLOYEE IS THE PARENT OF A CHILD WITHIN TWELVE MONTHS OF 16 THAT CHILD'S BIRTH OR PLACEMENT FOR ADOPTION OR FOSTER CARE WITH THE 17 EMPLOYEE; 18 (C) IN THE CASE OF BENEFITS FOR CARE OF A FAMILY MEMBER WITH A SERIOUS 19 HEALTH CONDITION: 20 (I) A STATEMENT BY THE FAMILY MEMBER'S HEALTH CARE PROVIDER, CONTAIN- 21 ING FACTS AND OPINIONS AS TO SUCH HEALTH CONDITION IN COMPLIANCE WITH 22 REGULATIONS OF THE CHAIR; AND 23 (II) A STATEMENT SUBSCRIBED BY THE EMPLOYEE AND AFFIRMED BY HIM OR HER 24 AS TRUE UNDER PENALTIES OF PERJURY, OR OTHER EQUIVALENT DOCUMENTARY 25 PROOF, THAT THE EMPLOYEE IS A PRIMARY CARE GIVER FOR THE FAMILY MEMBER 26 DURING THE TIME OF DISABILITY. 27 Failure to furnish notice or proof within the time and in the manner 28 above provided shall not invalidate the claim but no benefits shall be 29 required to be paid for any period more than two weeks prior to the date 30 on which the required proof is furnished unless it shall be shown to the 31 satisfaction of the chair not to have been reasonably possible to 32 furnish such notice or proof and that such notice or proof was furnished 33 as soon as possible; provided, however, that no benefits shall be paid 34 unless the required proof of disability is furnished within twenty-six 35 weeks after commencement of the period of disability. No limitation of 36 time provided in this section shall run as against any person who is 37 mentally incompetent, or physically incapable of providing such notice 38 as a result of a serious medical condition, or a minor so long as such 39 person has no guardian of the person and/or property. 40 2. An employee claiming benefits FOR HIS OR HER INJURY OR SICKNESS OR 41 PREGNANCY, OR THE FAMILY MEMBER OF SUCH EMPLOYEE IN ANY CASE WHERE THE 42 EMPLOYEE CLAIMS FAMILY CARE BENEFITS FOR PROVIDING CARE TO THAT FAMILY 43 MEMBER shall, as requested by the employer or carrier, submit himself or 44 herself at intervals, but not more than once a week, for examination by 45 a [physician or podiatrist or chiropractor or dentist or psychologist or 46 certified nurse midwife] RELEVANT HEALTH CARE PROVIDER designated by the 47 employer or carrier. All such examinations shall be without cost to the 48 employee OR FAMILY MEMBER and shall be held at a reasonable time and 49 place. 50 3. The chair may direct the claimant WHO SEEKS DISABILITY BENEFITS FOR 51 HIS OR HER INJURY OR SICKNESS OR PREGNANCY, OR THE CLAIMANTS' FAMILY 52 MEMBER WHERE THE CLAIMANT SEEKS DISABILITY BENEFITS FOR FAMILY LEAVE TO 53 PROVIDE CARE TO THAT FAMILY MEMBER to submit to examination by a [physi- 54 cian or podiatrist or chiropractor or dentist or psychologist] RELEVANT 55 HEALTH CARE PROVIDER designated by him or her in any case in which the 56 claim to disability benefits is contested and in claims arising under A. 8742 9 1 section two hundred seven OF THIS ARTICLE, and in other cases as the 2 chair or board may require. 3 4. Refusal of the claimant OR FAMILY MEMBER without good cause to 4 submit to any such examination shall disqualify [him] THE CLAIMANT from 5 all benefits hereunder for the period of such refusal, except as to 6 benefits already paid. 7 S 9-a. Section 217 of the workers' compensation law is amended by 8 adding a new subdivision 7 to read as follows: 9 7. THE COMMISSIONER OF LABOR, IN CONSULTATION WITH THE COMMISSIONER OF 10 HEALTH AND THE DIRECTOR OF THE OFFICE FOR THE AGING, SHALL DEVELOP AND 11 IMPLEMENT AN OUTREACH PROGRAM TO ENSURE THAT INDIVIDUALS WHO MAY BE 12 ELIGIBLE TO RECEIVE TEMPORARY DISABILITY INSURANCE AND FAMILY CARE BENE- 13 FITS UNDER THIS CHAPTER ARE MADE AWARE OF THESE BENEFITS. THE OUTREACH 14 PROGRAM SHALL PROVIDE ADEQUATE INFORMATION ON ELIGIBILITY REQUIREMENTS, 15 THE CLAIMS PROCESS, BENEFIT AMOUNTS, REINSTATEMENT AND NONDISCRIMINATION 16 RIGHTS, CONFIDENTIALITY AND COORDINATION OF LEAVE UNDER THIS CHAPTER AND 17 OTHER SECTIONS. THE COMMISSIONER SHALL PROVIDE SUCH OUTREACH INFORMATION 18 IN AS MANY LANGUAGES AND AS FREQUENTLY AS THE COMMISSIONER DEEMS NECES- 19 SARY TO PROVIDE ADEQUATE NOTICE. 20 S 10. Section 221 of the workers' compensation law, as separately 21 amended by chapters 425 and 500 of the laws of 1985, is amended to read 22 as follows: 23 S 221. Determination of contested claims for disability benefits. 24 Within twenty-six weeks of written notice of rejection of claim, DENIAL 25 OF RIGHTS UNDER SECTION TWO HUNDRED THREE-A OR TWO HUNDRED THREE-B OF 26 THIS ARTICLE, the employee may file with the chairman a notice that his 27 or her claim for disability benefits has not been paid, [and] OR THAT 28 THE EMPLOYEE HAS BEEN DENIED RIGHTS GUARANTEED BY SECTION TWO HUNDRED 29 THREE-A OR TWO HUNDRED THREE-B OF THIS ARTICLE. IN CASES OF DENIAL OF 30 BENEFITS, the employee shall submit proof of disability OR ELIGIBILITY 31 FOR FAMILY CARE and of his or her employment, wages and other facts 32 reasonably necessary for determination of the employee's right to such 33 benefits OR PROOF OF DENIAL OF RIGHTS UNDER SECTION TWO HUNDRED THREE-A 34 OR TWO HUNDRED THREE-B OF THIS ARTICLE OR OF RETALIATION. Failure to 35 file such notice within the time provided, may be excused by the chair- 36 man if it can be shown to the satisfaction of the chairman not to have 37 been reasonably possible to furnish such notice and that such notice was 38 furnished as soon as possible. On demand of the chairman the employer 39 or carrier shall forthwith deliver to the chairman PROOF OF DISABILITY, 40 INCLUDING IF RELEVANT the original or a true copy of the attending 41 physician's or attending podiatrist's or accredited practitioner's 42 statement, wage and employment data and all other papers in the 43 possession of the employer or carrier with respect to such claim OR 44 COMPLAINT. 45 The board shall have full power and authority to determine all issues 46 in relation to every such claim for disability OR FAMILY CARE benefits 47 required or provided under this article, OR WITH RESPECT TO DENIAL OF 48 RIGHTS UNDER SECTION TWO HUNDRED THREE-A OR TWO HUNDRED THREE-B OF THIS 49 ARTICLE OR INCLUDING ORDERING PAYMENT OF BENEFITS, DAMAGES AND REIN- 50 STATEMENT and shall file its decision in the office of the chairman. 51 Upon such filing, the chairman shall send to the parties a copy of the 52 decision. Either party may present evidence and be represented by coun- 53 sel at any hearing on such claim. The decision of the board shall be 54 final as to all questions of fact and, except as provided in section 55 twenty-three of this chapter, as to all questions of law. Every decision 56 of the board shall be complied with in accordance with its terms within A. 8742 10 1 ten days thereafter except in case of appeal, and any payments due under 2 such decision shall draw simple interest from thirty days after the 3 making thereof at the rate provided in section five thousand four of the 4 civil practice law and rules. 5 S 11. Subdivision 2 of section 229 of the workers' compensation law, 6 as added by chapter 271 of the laws of 1985, is amended to read as 7 follows: 8 2. Whenever an employee of a covered employer who is eligible for 9 benefits under section two hundred four of this article shall be absent 10 from work due to a disability as defined in subdivision nine of section 11 two hundred one of this article for more than seven consecutive days, 12 the employer shall provide the employee with a written statement of the 13 employee's rights under this article in a form prescribed by the chair- 14 man. The statement shall be provided to the employee within five busi- 15 ness days after the employee's seventh consecutive day of absence due to 16 disability or within five business days after the employer knows or 17 should know that the employee's absence is due to disability, whichever 18 is later. EACH COVERED EMPLOYER SHALL PROVIDE EACH EMPLOYEE WITH A TYPE- 19 WRITTEN, PRINTED OR ELECTRONIC NOTICE IN A FORM PRESCRIBED BY THE CHAIR, 20 STATING THAT THE EMPLOYER HAS PROVIDED FOR THE PAYMENT OF DISABILITY 21 BENEFITS AS REQUIRED BY THIS ARTICLE WITHIN THIRTY DAYS OF THE EFFECTIVE 22 DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND NINE WHICH AMENDED THIS 23 SUBDIVISION. EACH COVERED EMPLOYER SHALL PROVIDE SUCH NOTICE TO ALL NEW 24 EMPLOYEES WITHIN THIRTY DAYS OF THEIR FIRST DAY OF WORK. 25 S 12. The workers' compensation law is amended by adding a new section 26 239-a to read as follows: 27 S 239-A. FAMILY CARE STUDY AND MONITORING. 1. THE DEPARTMENT OF 28 INSURANCE SHALL STUDY, AND REPORT TO THE GOVERNOR AND BOTH HOUSES OF THE 29 LEGISLATURE BY APRIL FIRST, TWO THOUSAND TEN, ON THE FEASIBILITY AND 30 IMPACT OF COMMUNITY RATING DISABILITY INSURANCE OR ANY ASPECT THEREOF. 31 2. THERE SHALL BE CREATED THE FAMILY CARE ADVISORY COUNCIL, WHICH 32 SHALL CONSIST OF FIFTEEN MEMBERS TO BE APPOINTED BY THE GOVERNOR AS 33 FOLLOWS: TWO ON RECOMMENDATION BY THE NEW YORK STATE AMERICAN FEDERATION 34 OF LABOR-CONGRESS OF INDUSTRIAL ORGANIZATIONS, ONE OF WHOM SHALL BE 35 REPRESENTATIVE OF PUBLIC EMPLOYEE ORGANIZATIONS CERTIFIED UNDER ARTICLE 36 FOURTEEN OF THE CIVIL SERVICE LAW, PARTICIPATING IN THE PAID FAMILY CARE 37 PLAN, ONE OF WHOM IS REPRESENTATIVE OF UNIONS REPRESENTING WORKERS 38 EMPLOYED IN THE PRIVATE SECTOR; TWO WHO ARE REPRESENTATIVES OF ORGANIZA- 39 TIONS THAT REPRESENT EITHER COVERED BUSINESS OR PUBLIC EMPLOYERS IN NEW 40 YORK STATE PARTICIPATING IN THE PAID FAMILY LEAVE PLAN; TWO ON NOMI- 41 NATION OF THE SPEAKER OF THE ASSEMBLY; ONE ON NOMINATION BY THE MINORITY 42 LEADER OF THE ASSEMBLY; TWO ON NOMINATION BY THE TEMPORARY PRESIDENT OF 43 THE SENATE; ONE ON NOMINATION BY THE MINORITY LEADER OF THE SENATE; AND 44 THE SUPERINTENDENT OF INSURANCE, COMMISSIONER OF LABOR AND CHAIR OF THE 45 WORKERS' COMPENSATION BOARD, WHO SHALL SERVE AS MEMBERS EX OFFICIO. THE 46 COMMISSIONER OF LABOR SHALL SERVE AS CHAIR OF THE COUNCIL. THE SUPER- 47 INTENDENT OF INSURANCE AND CHAIR OF THE WORKERS' COMPENSATION BOARD 48 SHALL CONSULT REGULARLY WITH THE COUNCIL ON THE IMPLEMENTATION OF THE 49 FAMILY CARE BENEFIT. THE DEPARTMENT OF LABOR, THE INSURANCE DEPARTMENT 50 AND THE WORKERS' COMPENSATION BOARD SHALL PROVIDE ALL NECESSARY PERSON- 51 NEL AND LOGISTICAL SUPPORT AS MAY BE NECESSARY TO COMPLETE THE DUTIES OF 52 THE ADVISORY COUNCIL. THE COUNCIL OR ANY OF ITS MEMBERS MAY ISSUE SUCH 53 RECOMMENDATIONS OR REPORTS AS THEY DEEM WARRANTED ON THE FAMILY CARE 54 BENEFIT, INCLUDING ON THE SCOPE OF THE BENEFIT, PROBLEMS WITH THE BENE- 55 FIT; FUNDING OF THE BENEFIT INCLUDING PASS-THROUGH COSTS; POSSIBLE 56 STATUTORY AMENDMENTS AND REGULATORY CHANGES; USAGE RATES; OUTREACH; AND A. 8742 11 1 COMMUNITY RATING. ANY SUCH RECOMMENDATIONS OR REPORTS SHALL BE PROVIDED 2 TO THE GOVERNOR, SUPERINTENDENT OF INSURANCE, SPEAKER OF THE ASSEMBLY, 3 TEMPORARY PRESIDENT OF THE SENATE AND MINORITY LEADERS OF THE SENATE AND 4 ASSEMBLY. EACH MEMBER OF THE COMMISSION SHALL SERVE A TERM OF THREE 5 YEARS. AN APPOINTMENT TO FILL A VACANCY SHALL BE MADE FOR THE REMAINDER 6 OF THE AFFECTED TERM. MEMBERS SHALL RECEIVE NO COMPENSATION. 7 S 13. Paragraph 3 of subsection (a) of section 1113 of the insurance 8 law is amended to read as follows: 9 (3) "Accident and health insurance," means (i) insurance against death 10 or personal injury by accident or by any specified kind or kinds of 11 accident and insurance against sickness, ailment or bodily injury, 12 including insurance providing disability benefits pursuant to article 13 nine of the workers' compensation law, INCLUDING ANY INSURANCE UNDER 14 THAT ARTICLE FOR FAMILY CARE BENEFITS, DISABILITY BENEFITS RESULTING 15 FROM INJURY OR SICKNESS TO OR PREGNANCY OF AN EMPLOYEE, OR ALL, except 16 as specified in item (ii) [hereof] OF THIS PARAGRAPH; and (ii) non-can- 17 cellable disability insurance, meaning insurance against disability 18 resulting from sickness, ailment or bodily injury (but excluding insur- 19 ance solely against accidental injury) under any contract which does not 20 give the insurer the option to cancel or otherwise terminate the 21 contract at or after one year from its effective date or renewal date. 22 S 14. This act shall take effect immediately; provided, however, that: 23 (a) Sections one, two, three, three-a, three-b, three-c, four, five, 24 six, seven, seven-a, seven-b, eight, nine, nine-a, ten, eleven and thir- 25 teen of this act shall take effect January 1, 2010. 26 (b) Paragraph a of subdivision 3 of section 211-a of the workers' 27 compensation law, as added by section seven-b of this act allowing 28 public employees to opt in to family care benefits prior to July 1, 2010 29 and subdivision 1 of section 212 of the workers' compensation law as 30 amended by section eight of this act allowing public employers to opt in 31 to family care benefits prior to July 1, 2010, shall take effect imme- 32 diately. 33 (c) Effective immediately, the addition, amendment and/or repeal of 34 any rules or regulations necessary for the implementation of this act on 35 its effective date are authorized and directed to be made and completed 36 on or before such effective date.