STATE OF NEW YORK ________________________________________________________________________ 2821--A 2023-2024 Regular Sessions IN SENATE January 24, 2023 ___________ Introduced by Sens. RAMOS, ADDABBO, COMRIE, HOYLMAN-SIGAL -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the workers' compensation law, in relation to expanding eligibility for temporary disability insurance and paid family leave benefits and to making certain conforming technical changes The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 9 of section 201 of the workers' compensation 2 law, as amended by chapter 675 of the laws of 1977, paragraph B as 3 amended by chapter 352 of the laws of 1981, is amended to read as 4 follows: 5 9. [A.] (a) "Disability" during employment means the inability of an 6 employee, as a result of injury or sickness not arising out of and in 7 the course of an employment, to perform the regular duties of [his] 8 their employment or the duties of any other employment which [his] their 9 employer may offer [him] them at [his] their regular wages and which 10 [his] their injury or sickness does not prevent [him] them from perform- 11 ing. "Disability" during unemployment means the inability of an employ- 12 ee, as a result of injury or sickness not arising out of and in the 13 course of an employment, to perform the duties of any employment for 14 which [he is] they are reasonably qualified by training and experience. 15 [B.] (b) "Disability" also includes disability caused by or in 16 connection with a pregnancy. 17 (c) "Disability" also includes the inability of an employee to work in 18 order to receive medical treatment for a serious health condition not 19 arising out of and in the course of employment. 20 § 2. Subdivision 20 of section 201 of the workers' compensation law, 21 as amended by chapter 550 of the laws of 2021, is amended to read as 22 follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04613-03-3
S. 2821--A 2 1 20. "Family member" means a child, parent, grandparent, grandchild, 2 sibling, spouse, or domestic partner as defined in this section, or any 3 other individual related by blood to the employee or whose close associ- 4 ation with the employee is the equivalent of a family relationship. 5 § 3. Section 203 of the workers' compensation law, as amended by 6 section 3 of part SS of chapter 54 of the laws of 2016, is amended to 7 read as follows: 8 § 203. Employees eligible for benefits under section two hundred four 9 of this article. Employees in employment of a covered employer for four 10 or more consecutive weeks and employees in employment during the work 11 period usual to and available during such four or more consecutive weeks 12 in any trade or business in which they are regularly employed and in 13 which hiring from day to day of such employees is the usual employment 14 practice shall be eligible for disability and family leave benefits as 15 provided in section two hundred four of this article. [Employees in 16 employment of a covered employer for twenty-six or more consecutive 17 weeks and employees in employment during the work period usual to and 18 available during such twenty-six or more consecutive weeks in any trade 19 or business in which they are regularly employed and in which hiring 20 from day to day of such employees is the usual employment practice shall 21 be eligible for family leave benefits as provided in section two hundred 22 four of this article. Every such employee shall continue to be eligible 23 for family leave benefits only during employment with a covered employ- 24 er.] Every such employee shall continue to be eligible for disability 25 and family leave benefits during such employment and for a period of 26 four weeks after such employment terminates regardless of whether the 27 employee performs any work for remuneration or profit in non-covered 28 employment. If during such four week period the employee performs any 29 work for remuneration or profit for another covered employer the employ- 30 ee shall become eligible for disability and family leave benefits imme- 31 diately with respect to that employment. In addition every such employee 32 who has previously completed four or more consecutive weeks in employ- 33 ment with the covered employer for purposes of disability and family 34 leave benefits[, or twenty-six or more consecutive weeks in employment 35 with the covered employer for purposes of paid family leave,] and 36 returns to work with the same employer after an agreed and specified 37 unpaid leave of absence or vacation without pay shall become eligible 38 for benefits immediately with respect to such employment. An employee 39 who during a period in which [he or she is] they are eligible to receive 40 benefits under subdivision two of section two hundred seven of this 41 article returns to employment with a covered employer and an employee 42 who is currently receiving unemployment insurance benefits or benefits 43 under section two hundred seven of this article and who returns to 44 employment with a covered employer shall become eligible for disability 45 and family leave benefits immediately with respect to such employment. 46 An employee regularly in the employment of a single employer on a work 47 schedule less than the employer's normal work week shall become eligible 48 for disability and family leave benefits on the twenty-fifth day of such 49 regular employment [and for purposes of paid family leave an employer 50 shall become eligible for benefits on the one hundred seventy-fifth day 51 of such regular employment]. An employee who is eligible for disability 52 and family leave benefits in the employment of a covered employer shall 53 not be deemed, for the purposes of this article, to have such employment 54 terminated during any period [he or she is] they are eligible to receive 55 benefits under section two hundred four of this article with respect to 56 such employment.
S. 2821--A 3 1 § 4. Section 203-a of the workers' compensation law, as added by 2 section 4 of part SS of chapter 54 of the laws of 2016, is amended to 3 read as follows: 4 § 203-a. [Retaliatory] Interference and retaliatory action prohibited 5 for disability and family leave. 1. The provisions of section one 6 hundred twenty of this chapter and section two hundred forty-one of this 7 article shall be applicable to disability and family leave. 8 2. It shall be unlawful for any employer to interfere with, restrain, 9 or deny the exercise of, or the attempt to exercise, any right provided 10 under this article, including: (a) failing to comply with the require- 11 ments of section two hundred twenty-nine of this article, such as by 12 failing to provide an employee with the notice of rights required by 13 such section; (b) failing to provide an employee with complete and accu- 14 rate information related to the submission of a claim for disability or 15 family leave benefits, such as by failing to inform the employee that it 16 is the employee's responsibility to submit the completed application 17 materials to the employer's insurance carrier or by failing or refusing 18 to provide the employee with the name of the employer's insurance carri- 19 er and/or the employer's policy number with said insurance carrier; (c) 20 failing to accurately complete and return to the employee the disability 21 or family leave application paperwork within the time period specified 22 by the chair; (d) providing the employer's insurance carrier with inac- 23 curate information about an employee's employment as it relates to the 24 employee's eligibility for disability or family leave benefits; (e) 25 refusing to allow an employee who has requested disability or family 26 leave under this article to begin leave until the employer's insurance 27 carrier has approved the employee's claim for disability or family leave 28 benefits; (f) failing or refusing to carry disability or family leave 29 insurance as required by section two hundred eleven of this article; (g) 30 threatening termination, demotion, discipline, suspension, or reduction 31 of hours or wages, reporting or threatening to report an employee's 32 suspected citizenship or immigration status or the suspected citizenship 33 or immigration status of a family member of the employee to a federal, 34 state, or local agency, or threatening any other action against an 35 employee seeking to take disability or family leave that might reason- 36 ably deter an employee from exercising a right provided under this arti- 37 cle; or (h) threatening or taking any other action that may have the 38 effect of preventing or discouraging an employee from exercising a right 39 provided under this article. 40 3. Nothing in this section shall be deemed to diminish the rights, 41 privileges, or remedies of any employee under any collective bargaining 42 agreement or employment contract. 43 § 5. Section 203-b of the workers' compensation law, as added by 44 section 4 of part SS of chapter 54 of the laws of 2016, is amended to 45 read as follows: 46 § 203-b. Reinstatement following disability or family leave. Any 47 eligible employee of a covered employer who takes leave, including leave 48 due to a disability, under this article shall be entitled, on return 49 from such leave, to be restored by the employer to the position of 50 employment held by the employee when the leave commenced, or to be 51 restored to a comparable position with comparable employment benefits, 52 pay and other terms and conditions of employment. The taking of family 53 leave or leave due to a disability shall not result in the loss of any 54 employment benefit accrued prior to the date on which the leave 55 commenced. Nothing in this section shall be construed to entitle any 56 restored employee to the accrual of any seniority or employment benefits
S. 2821--A 4 1 during any period of leave, or any right, benefit or position to which 2 the employee would have been entitled had the employee not taken the 3 leave. 4 § 6. Section 203-c of the workers' compensation law, as added by 5 section 4 of part SS of chapter 54 of the laws of 2016, is amended to 6 read as follows: 7 § 203-c. Health insurance during disability or family leave. In 8 accordance with the Family and Medical Leave Act (29 U.S.C. §§ 9 2601-2654), during any period of disability or family leave the employer 10 shall maintain any existing health benefits of the employee in force for 11 the duration of such leave as if the employee had continued to work from 12 the date [he or she] they commenced disability or family leave until the 13 date [he or she returns] they return to employment. 14 § 7. Subdivision 2 of section 204 of the workers' compensation law, as 15 amended by section 5 of part SS of chapter 54 of the laws of 2016, is 16 amended to read as follows: 17 2. (a) The weekly benefit for family leave that occurs (i) on or after 18 January first, two thousand eighteen shall not exceed eight weeks during 19 any fifty-two week calendar period and shall be fifty percent of the 20 employee's average weekly wage but shall not exceed fifty percent of the 21 state average weekly wage, (ii) on or after January first, two thousand 22 nineteen shall not exceed ten weeks during any fifty-two week calendar 23 period and shall be fifty-five percent of the employee's average weekly 24 wage but shall not exceed fifty-five percent of the state average weekly 25 wage, (iii) on or after January first, two thousand twenty shall not 26 exceed ten weeks during any fifty-two week calendar period and shall be 27 sixty percent of the employee's average weekly wage but shall not exceed 28 sixty percent of the state average weekly wage, [and] (iv) on or after 29 January first [of each succeeding year], two thousand twenty-two shall 30 not exceed twelve weeks during any fifty-two week calendar period and 31 shall be sixty-seven percent of the employee's average weekly wage but 32 shall not exceed sixty-seven percent of the New York state average week- 33 ly wage in effect, and (v) on or after January first, two thousand twen- 34 ty-five, shall not exceed twelve weeks during any fifty-two week calen- 35 dar period and shall be ninety percent of the portion of the employee's 36 average weekly wage that is equal to or less than fifty percent of the 37 New York state average weekly wage in effect and sixty-seven percent of 38 the portion of the employee's average weekly wage that is more than 39 fifty percent of the New York state average weekly wage in effect but 40 shall not exceed sixty-seven percent of the New York state average week- 41 ly wage in effect. The superintendent of financial services shall have 42 discretion to delay the increases in the family leave benefit level 43 provided in subparagraphs (ii), (iii), [and] (iv), and (v) of this para- 44 graph by one or more calendar years. In determining whether to delay the 45 increase in the family leave benefit for any year, the superintendent of 46 financial services shall consider: (1) the current cost to employees of 47 the family leave benefit and any expected change in the cost after the 48 benefit increase; (2) the current number of insurers issuing insurance 49 policies with a family leave benefit and any expected change in the 50 number of insurers issuing such policies after the benefit increase; (3) 51 the impact of the benefit increase on employers' business and the over- 52 all stability of the program to the extent that information is readily 53 available; (4) the impact of the benefit increase on the financial 54 stability of the disability and family leave insurance market and carri- 55 ers; and (5) any additional factors that the superintendent of financial 56 services deems relevant. If the superintendent of financial services
S. 2821--A 5 1 delays the increase in the family leave benefit level for one or more 2 calendar years, the family leave benefit level that shall take effect 3 immediately following the delay shall be the same benefit level that 4 would have taken effect but for the delay. The weekly benefits for fami- 5 ly leave that occurs on or after January first, two thousand eighteen 6 shall not be less than one hundred dollars per week except that if the 7 employee's wages at the time of family leave are less than one hundred 8 dollars per week, the employee shall receive [his or her] their full 9 wages. Benefits may be payable to employees for paid family leave taken 10 intermittently or for less than a full work week in increments of one 11 full day or one fifth of the weekly benefit. 12 (b) The weekly benefit which the disabled employee is entitled to 13 receive for disability commencing on or after January first, two thou- 14 sand twenty-five shall be ninety percent of the portion of the employ- 15 ee's average weekly wage that is equal to or less than fifty percent of 16 the New York state average weekly wage in effect and sixty-seven percent 17 of the portion of the employee's average weekly wage that is more than 18 fifty percent of the New York state average weekly wage in effect but 19 shall not exceed sixty-seven percent of the New York state average week- 20 ly wage in effect; except that if the employee's average weekly wage is 21 less than one hundred dollars, the benefit shall be such average weekly 22 wage. The weekly benefit which the disabled employee is entitled to 23 receive for disability commencing on or after May first, nineteen 24 hundred eighty-nine shall be one-half of the employee's weekly wage, but 25 in no case shall such benefit exceed one hundred seventy dollars; except 26 that if the employee's average weekly wage is less than twenty dollars, 27 the benefit shall be such average weekly wage. The weekly benefit which 28 the disabled employee is entitled to receive for disability commencing 29 on or after July first, nineteen hundred eighty-four shall be one-half 30 of the employee's weekly wage, but in no case shall such benefit exceed 31 one hundred forty-five dollars; except that if the employee's average 32 weekly wage is less than twenty dollars, the benefit shall be such aver- 33 age weekly wage. The weekly benefit which the disabled employee is enti- 34 tled to receive for disability commencing on or after July first, nine- 35 teen hundred eighty-three and prior to July first, nineteen hundred 36 eighty-four shall be one-half of the employee's average weekly wage, but 37 in no case shall such benefit exceed one hundred thirty-five dollars nor 38 be less than twenty dollars; except that if the employee's average week- 39 ly wage is less than twenty dollars the benefit shall be such average 40 weekly wage. The weekly benefit which the disabled employee is entitled 41 to receive for disability commencing on or after July first, nineteen 42 hundred seventy-four, and prior to July first, nineteen hundred eighty- 43 three, shall be one-half of the employee's average weekly wage, but in 44 no case shall such benefit exceed ninety-five dollars nor be less than 45 twenty dollars; except that if the employee's average weekly wage is 46 less than twenty dollars, the benefit shall be such average weekly wage. 47 The weekly benefit which the disabled employee is entitled to receive 48 for disability commencing on or after July first, nineteen hundred 49 seventy and prior to July first, nineteen hundred seventy-four shall be 50 one-half of the employee's average weekly wage, but in no case shall 51 such benefit exceed seventy-five dollars nor be less than twenty 52 dollars; except that if the employee's average weekly wage is less than 53 twenty dollars the benefit shall be such average weekly wage. For any 54 period of disability less than a full week, the benefits payable shall 55 be calculated by dividing the weekly benefit by the number of the 56 employee's normal work days per week and multiplying the quotient by the
S. 2821--A 6 1 number of normal work days in such period of disability. The weekly 2 benefit for a disabled employee who is concurrently eligible for bene- 3 fits in the employment of more than one covered employer shall, within 4 the maximum and minimum herein provided, be (i) one-half of the total of 5 the employee's average weekly wages received from all such covered 6 employers, or (ii) for disability commencing on or after January first, 7 two thousand twenty-five, ninety percent of the portion of the employ- 8 ee's average weekly wage received from all such covered employers that 9 is equal to or less than fifty percent of the New York state average 10 weekly wage in effect and sixty-seven percent of the portion of the 11 employee's average weekly wage received from all such covered employers 12 that is more than fifty percent of the New York state average weekly 13 wage in effect, and shall be allocated in the proportion of their 14 respective average weekly wage payments. 15 § 8. Section 207 of the workers' compensation law, as added by chap- 16 ter 600 of the laws of 1949, subdivisions 1 and 2 as amended by chapter 17 438 of the laws of 1964, subdivision 4 as amended by chapter 436 of the 18 laws of 1986, and subdivision 5 as added by section 8 of part SS of 19 chapter 54 of the laws of 2016, is amended to read as follows: 20 § 207. Disability while unemployed. 1. Employees entitled to unemploy- 21 ment insurance benefits. An employee whose employment with a covered 22 employer is terminated and who during a period of unemployment within 23 twenty-six weeks immediately following such termination of employment 24 shall become ineligible for benefits currently being claimed under the 25 unemployment insurance law solely because of disability commencing after 26 June thirtieth, nineteen hundred fifty or need for family leave commenc- 27 ing after January first, two thousand twenty-five, and who on the day 28 such disability or need for family leave commences is not employed or 29 working for remuneration or profit and is not then otherwise eligible 30 for benefits under this article, shall be entitled to receive disability 31 or family leave benefits as herein provided for each week of such disa- 32 bility or need for family leave for which week [he] they would have 33 received unemployment insurance benefits if [he] they were not so disa- 34 bled or did not have such need for family leave. The weekly benefit of 35 such [disabled] employee shall be computed in the same manner as 36 provided in subdivision two of section two hundred four of this article, 37 and the benefits [he is] they are entitled to receive shall be subject 38 to the limitations as to maximum and minimum amounts and duration and 39 other conditions and limitations prescribed in sections two hundred 40 four, two hundred five and two hundred six of this article. 41 2. Employees not eligible for unemployment insurance benefits. An 42 employee whose employment with a covered employer is terminated and who 43 was in employment of one or more covered employers and was paid wages of 44 at least thirteen dollars in such employment in each of twenty calendar 45 weeks during the thirty calendar weeks immediately preceding the date 46 [he] they last worked for such covered employer, and who during a period 47 of unemployment within twenty-six weeks immediately following such 48 termination of employment is not eligible to benefits under the unem- 49 ployment insurance law because of lack of qualifying wages but who 50 during unemployment has evidenced [his] their continued attachment to 51 the labor market, shall be eligible for benefits under the provisions of 52 this subdivision for disability commencing after June thirtieth, nine- 53 teen hundred fifty or need for family leave commencing after January 54 first, two thousand twenty-five. If such employee becomes disabled and 55 continues to be disabled for at least eight consecutive days during such 56 twenty-six week period and on the day such disability commences [he is]
S. 2821--A 7 1 they are not employed or working for remuneration or profit and is not 2 then otherwise eligible for benefits under this article, [he] they shall 3 be entitled to receive disability benefits, as herein provided, begin- 4 ning with the eighth consecutive day of such disability, for each week 5 of such disability thereafter. If such employee has a need for family 6 leave during such twenty-six week period and on the day such family 7 leave commences such person is not employed or working for remuneration 8 or profit and is not then otherwise eligible for benefits under this 9 article, such person shall be entitled to receive family leave benefits, 10 as herein provided for each week of such family leave thereafter. The 11 weekly benefit of such [disabled] employee shall be computed in the same 12 manner as provided in subdivision two of section two hundred four of 13 this article, and the benefits [he is] they are entitled to receive 14 shall be subject to the limitations as to maximum and minimum amounts 15 and duration and other conditions and limitations prescribed in sections 16 two hundred four, two hundred five and two hundred six of this article. 17 3. Payment of benefits. The benefits payable under this section shall 18 be subject to the provisions and limitations generally applicable to 19 disability and family leave benefits payable under this article, and 20 shall be paid by the [chairman] chair out of any assets in the fund 21 created by section two hundred fourteen of this article. The [chairman] 22 chair may require an employee claiming benefits under this section to 23 file proofs of disability or need for family leave and of [his] their 24 employment and wages, and other proofs reasonably necessary for the 25 [chairman] chair to make in the first instance the determination of 26 eligibility and benefit rights under this section; and may require [his] 27 their employer or [his] their former employer or employers to file 28 reports of employment and wages and other information reasonably neces- 29 sary for such determination. The [chairman] chair may make administra- 30 tive regulations for such determinations. The [chairman] chair may also 31 by regulation establish reasonable procedures for determining pro rata 32 benefits payable with respect to disability or family leave periods of 33 less than one week. Any employee claiming benefits under this section 34 whose claim is rejected in whole or in part by the [chairman] chair, 35 shall be entitled to request a review by the board and shall have all 36 the rights with respect to contested claims provided in this article. 37 4. Qualification notwithstanding casual non-covered employment. An 38 employment of not more than four weeks with a non-covered employer or 39 employers occurring within such twenty-six weeks period shall not 40 disqualify an employee from benefits provided such employee was other- 41 wise eligible to receive benefits under this section at the time such 42 employment for a non-covered employer commenced. 43 [5. The foregoing provisions of this section shall not apply to family 44 leave benefits, as family leave benefits are not available to employees 45 that are not employed at the time family leave is requested by filing 46 the notice and medical certification required by the chair.] 47 § 9. Paragraph (b) of subdivision 4 of section 212 of the workers' 48 compensation law, as added by section 13 of part SS of chapter 54 of the 49 laws of 2016, is amended to read as follows: 50 (b) Notwithstanding the definition of "employer" in section two 51 hundred one of this article, a sole proprietor, member of a limited 52 liability company or limited liability partnership, or other self-em- 53 ployed person may become a covered employer under this article for a 54 period of at least one year by complying with the provisions of subdivi- 55 sion one of this section. A self-employed person who becomes a covered 56 employer under this section shall become eligible for disability and
S. 2821--A 8 1 family leave benefits no later than four weeks after the purchase of a 2 policy of insurance under this article. 3 § 10. Section 229 of the workers' compensation law is amended by 4 adding a new subdivision 3 to read as follows: 5 3. Materials related to paid family leave and temporary disability 6 insurance, including application forms, shall be considered vital docu- 7 ments under section two hundred two-a of the executive law. 8 § 11. Subdivision 2 of section 2 of the workers' compensation law, as 9 amended by chapter 717 of the laws of 2021, is amended to read as 10 follows: 11 2. (a) "Department" means the department of labor of the state of New 12 York; 13 (b) "Chairman" or "chair" means the [chairman] chair of the workers' 14 compensation board of the state of New York; 15 (c) "Commissioner" means the industrial commissioner of the state of 16 New York; 17 (d) "Board" means the workers' compensation board of the state of New 18 York; 19 (e) "Commissioners" means the commissioners of the state insurance 20 fund of the department of labor of the state of New York. 21 § 12. Subdivision 2 of section 201 of the workers' compensation law, 22 as amended by chapter 717 of the laws of 2021, is amended to read as 23 follows: 24 2. "Chairman" or "chair" means the [chairman] chair of the workers' 25 compensation board of the state of New York. 26 § 13. Subdivision 6 of section 302 of the workers' compensation law, 27 as amended by chapter 717 of the laws of 2021, is amended to read as 28 follows: 29 6. "Chairman" or "chair" shall mean the [chairman] chair of the work- 30 ers' compensation board. 31 § 14. Severability. If any clause, sentence, paragraph, subdivi- 32 sion, section or part of this act shall be adjudged by any court of 33 competent jurisdiction to be invalid, such judgment shall not affect, 34 impair, or invalidate the remainder thereof, but shall be confined in 35 its operation to the clause, sentence, paragraph, subdivision, section 36 or part thereof directly involved in the controversy in which 37 such judgment shall have been rendered. It is hereby declared to be the 38 intent of the legislature that this act would have been enacted even if 39 such invalid provisions had not been included herein. 40 § 15. This act shall take effect on the sixtieth day after it shall 41 have become a law. Effective immediately, the addition, amendment 42 and/or repeal of any rule or regulation necessary for the implementation 43 of this act on its effective date are authorized to be made and 44 completed on or before such effective date.