senate Bill S1252

2011-2012 Legislative Session

Provides workers' comp benefits for family care

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to labor
Jan 06, 2011 referred to labor

Co-Sponsors

S1252 - Bill Details

Current Committee:
Senate Labor
Law Section:
Workers' Compensation Law
Laws Affected:
Amd Work Comp L, generally; amd §1113, Ins L
Versions Introduced in 2009-2010 Legislative Session:
S4074

S1252 - Bill Texts

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Provides workers' compensation benefits for family care; applies to employee and family member's taking family leave to care for the employee.

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BILL NUMBER:S1252

TITLE OF BILL:
An act
to amend the workers' compensation law and the insurance law,
in relation to providing benefits for family care

PURPOSE:
This bill provides for the payment of disability benefits to employees
who take family leave, either to bond with a child under the age of
one, or to care for a sick relative.

SUMMARY OF PROVISIONS:
Section 1 of the bill amends the definition of "disability" in
Workers' compensation Law (WCL) § 201(9) to include family leave.

Section 2 of the bill amends the definition of "day of disability" in
WCL § 201(14) to include days taken for family leave.

Section 3 of the bill adds paragraphs 15 through 24 to WCL § 201 to
add definitions for "family ;Leave," "child," "domestic partner,"
"serious health condition," "parent," "family member," "in loco
parentis," "grandchild" "health care provider," and "family care
cost." "Family leave" is defined to mean any leave from work
necessary to care for a seriously ill family member, or to bond with
a child during his or her first twelve months. A "family member" is
defined to mean a child, spouse, domestic partner, parent or
grandchild. "Family care cost," the amount that may be passed on to
employees for the cost of the family care benefit, is defined to be
forty-five cents until, July I, 2013, and thereafter an amount set by
the Superintendent of Insurance on an annual basis in accordance with
strictures set forth in the bill.

Section 4 of the bill amends WCL § 204 to set the commencement date
for a period of family leave as the start of the leave period taken
by the employee.

Section 5 of the bill amends WCL § 205 to make clear which of its
provisions apply to disability for sickness and injury, and which to
family leave, and to set distinct periods for receipt of disability
benefits: twenty-six weeks for sickness and injury, and twelve weeks
for family leave. It also states that no benefits under this article
may be taken for the time an employee is absent from work for
disciplinary reasons, and that no family care benefit may be taken
when the employee is absent for personal sickness or injury.

Section 6 of the bill adds a new section 205-a to the WCL to make
clear that receipt of disability benefits for sickness or injury does
not affect the time limitations for family leave, and receipt of
disability
benefits for family leave does not affect the time limitations for
receipt of benefits for sickness or injury.

Section 7 of the bill amends WCL § 209(3) to raise the amount of
weekly disability costs that an employer can pass on to an employee


from sixty cents to sixty cents plus the "family care cost," as
defined in WCL § 201 (24).

Section 8 of the bill amends WCL § 211 to make clear that the family
care benefits provided for in this bill do not affect or alter
existing rights under collective bargaining agreements, and that
employers may secure benefits for disability arising from injury or
sickness, and for family care, from different sources or through
different means.

Section 9 of the bill amends the WCL to create a new section 211-a to
allow public employees to opt in to the family care benefit through
their representative organizations. The section sets forth specific
times when such organizations may opt in or out, including three
months prior to the effective date of the bill; upon three months
notice where the employer does not already participate in the
statutory disability program; and at any mutually agreeable time.
When an employee organization opts into the benefit on behalf of its
members, the employer may require the employees to pay the family
care cost, unless there is a collectively negotiated agreement
otherwise.

Section 10 of the bill amends WCL § 212 to make clear that when a
public employer opts into benefits under this article, it may do so
as to disability, family leave, or both.

Section 11 of the bill amends WCL § 76 to allow the State Insurance
Fund to provide insurance for family care benefits, either together
with or separate from disability insurance.

Section 12 of the bill amends WCL § 217 to set forth the requirements
for proof of disability in cases of family leave, and to require that
where an employee receives disability benefits for time spent caring
for a sick relative, the relative must subject himself or herself to
a medical examination in certain circumstances.

Section 13 of the bill amends WCL § 221 to make clear in regard to
contested claims that certain proofs of disability applicable to
cases of sickness or injury must be submitted only when relevant.

Section 14 of the bill amends WCL § 229(2) to require employers to
provide each employee with notice regarding disability benefits, in a
form prescribed by the chair of the Workers' Compensation Board,
within thirty days of the section's effective date, and thirty days
of any new employee's initial day of work.

Section 15 of the bill adds a new section 239-a to the WCL requiring
the Department of Insurance to study, and report to the Governor and
both houses of Legislature by April I, 2012, on the feasibility and
impact of community rating disability insurance. This section also
provides for the creation of a fifteen member family care advisory
council, which will consult with the Superintendent of Insurance
and issue reports on various issues relating to the family care
benefit.

Section 16 of the bill amends Insurance law subsection 1113 (a) to
include family care benefits and disability benefits from sickness or


injury within "accident and health insurance," or insurance against
death or personal injury.

Section 17 of the bill provides the effective date.

EXISTING LAW:
Sections 200 through 242 of the WCL require employers to provide for
the payment of disability benefits of up to $170 per week when an
employee is absent from work due to sickness or injury unrelated to
his or her work. Disability is defined to include pregnancy, but not
any form of family leave unrelated to the employee's own sickness or
injury.

STATEMENT IN SUPPORT:
Many families today experience a fierce struggle as they attempt to
balance the need to earn a living with the need to care for their
children and seriously ill family members. Often economic necessity
forces parents to return to work very shortly after a child is born
or adopted.
Although the federal Family and Medical Leave Act (FMLA) guarantees
twelve weeks of unpaid leave to covered workers, a national study
found that 77% of those who did not take needed leave under FMLA
refrained from doing so because they could not afford the unpaid time.

With the increase in recent decades of women in the workforce, of dual
earner households, and of households headed by single parents, often
the only potential caretaker for a new child or sick family member is
an individual who is employed outside of the home. Paid family care
benefits will allow those individuals to remain in the workforce even
as they shoulder their family responsibilities. In addition, because
people are living longer, workers a.re increasingly finding it
necessary to take time off work to care for elderly parents or
seriously ill loved ones. For many families, medical emergencies lead
to financial ruin, resulting not only from medical bills but also
from lack of income.
Allowing caretakers to receive a modest income during a limited time
away from work would help forestall such financial distress.

When parents are unable to take leave after a child's birth, the
consequence is not only disruption for the family but potential
damage to the child's development, since research on child
development shows the important role of early bonding with parents.
Thus, paid family care benefits are a cornerstone of an effective
birth-to-five education agenda, and policies that allow parents a
reasonable payment for time off taken after a birth, adoption, or
foster care placement affect not only the workers who are able to
take leave but also the rest of New York's residents, who have a
stake in a healthy next generation. This bill seeks to address these
problems by creating a paid family care program.
Under the provision of the bill, workers can receive a modest cash
benefit for twelve weeks while they are on leave to bond with a
newborn, newly adopted child, or newly placed foster child; or to
care for a seriously ill parent, child, spouse, domestic partner,
grandchild or parent-in-law. Domestic partners are included in
recognition of their important role in the furtherance of caring,
committed family relationships, and grandchildren are included in


recognition of the many families in which grandparents are the
primary caretakers of their grandchildren

The bill structures the paid family leave program within the existing
Temporary Disability Insurance (TDI) program administered by the
Workers' Compensation Board.

There are a number of benefits to using the existing TDI system.

First, an administrative agency and process for administering the
program already exist, and many of its elements are already
established, such as eligibility requirements, waiting periods,
penalties, and antifraud protections. Beneficiaries of the paid
family leave program, like the current beneficiaries of TDI, will be
required: (a) to be employed with a covered employer for four weeks
prior to the date of disability;
and (b) to wait seven days before receiving benefits.

Second, employers will not need to adjust to a new program, but will
simply augment their existing coverage for disability to include
family leave. Like TDI, the bill covers virtually all private
employers, and approximately half of local public employers (those
that have already opted in to TDI). TDI itself confers no job
protection for employees who miss work because of a qualified
disability. only employees covered by FMLA or other leave program
would have job protection under this bill.

Third, the cost of providing TDI can be shared between employers and
employees. At present, employers may deduct a maximum of 60 cents per
week from employees, or $31.20 per year. In practice, not all
employers take the 60 cent weekly payroll deduction. The bill would
allow for the lifting of the current 60 cent cap on the employee
contribution, and allow employers to pass on to employees an
additional amount equal to the average cost of providing coverage for
family care. For the first year, that amount will be set at 45 cents
per week, an amount estimated to be sufficient to cover the average
increase per employee in the cost of TDI insurance resulting from the
family care benefit. Thereafter, the amount will be set by the
Superintendent of Insurance based on a sound actuarial calculation of
the average cost of providing the benefit.

Fourth, the TDI system does not require extensive government
intervention. Most cases are resolved through the employer, employee
and insurer, without any government involvement. Many other developed
nations have some form of paid leave, and this proposal is one of
many pending nationwide to provide families with greater support
during the critical moments of the lives of their newborn children or
their seriously ill family members. In 2002, California created the
nation's first paid family leave program, and Washington has now
enacted a similar proposal. with this bill, New York can move to the
forefront of this effort to support working families by increasing
their ability to spend time on crucial family matters, and providing
them with a means of support during that time.

LEGISLATIVE HISTORY:
2009-2010: S.4074 - Referred to Labor


BUDGET IMPLICATIONS:
The bill does require coverage for state employees, and all private
benefits are funded either by employers (either through
self-insurance or a policy purchased from a carrier or the State
Insurance Fund) or by employees. Either the State or public employee
unions covering state workers may opt into the benefit, which could
entail cost if the option was exercised, and depending on whether any
negotiated limits were placed on the pass through to employees. The
bill will also require modest additional administrative expenses for
such increased operation of the Workers' Compensation Board as is
needed to administer the new benefits.

EFFECTIVE DATE:

This bill takes effect immediately, with provisions.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1252

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             January 6, 2011
                               ___________

Introduced  by  Sen. ADDABBO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the workers' compensation law and the insurance law,  in
  relation to providing benefits for family care

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 9 of section 201 of the  workers'  compensation
law is amended by adding a new paragraph C to read as follows:
  C.  "DISABILITY"  ALSO INCLUDES FAMILY CARE, AS DEFINED IN SUBDIVISION
FIFTEEN OF THIS SECTION.  UNLESS OTHERWISE SET FORTH  IN  THIS  ARTICLE,
ALL  PROVISIONS  OF THIS ARTICLE APPLICABLE TO DISABILITY SHALL APPLY TO
BOTH DISABILITY ARISING FROM SICKNESS AND INJURY, AND TO FAMILY CARE.
  S 2. Subdivision 14 of section 201 of the workers'  compensation  law,
as added by chapter 600 of the laws of 1949 and as renumbered by chapter
438 of the laws of 1964, is amended to read as follows:
  14.  "A  day  of  disability"  means any day on which the employee was
prevented from performing work because of disability, INCLUDING ANY  DAY
ON  WHICH  THE EMPLOYEE TOOK OFF FOR FAMILY CARE, and for which [he] THE
EMPLOYEE has not received his OR HER regular remuneration.
  S 3. Section 201 of the workers' compensation law is amended by adding
ten new subdivisions 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24  to  read
as follows:
  15. "FAMILY CARE" SHALL MEAN ANY LEAVE TAKEN BY AN EMPLOYEE FROM WORK:
A. TO PARTICIPATE IN PROVIDING CARE, INCLUDING PHYSICAL OR PSYCHOLOGICAL
CARE,  FOR  A  FAMILY MEMBER OF THE EMPLOYEE MADE NECESSARY BY A SERIOUS
HEALTH CONDITION OF THE FAMILY MEMBER; OR B. TO BOND  WITH  HIS  OR  HER
CHILD  DURING  THE  FIRST  TWELVE MONTHS AFTER THE CHILD'S BIRTH, OR THE
FIRST TWELVE MONTHS AFTER THE PLACEMENT OF THE  CHILD  FOR  ADOPTION  OR
FOSTER CARE WITH THE EMPLOYEE.
  16. "CHILD" MEANS A BIOLOGICAL, ADOPTED, OR FOSTER CHILD, A STEPCHILD,
A  LEGAL WARD, OR A CHILD OF A PERSON STANDING IN LOCO PARENTIS, WHO IS:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01385-01-1

S. 1252                             2

A.  UNDER EIGHTEEN YEARS OF AGE; OR B. EIGHTEEN YEARS OF  AGE  OR  OLDER
AND INCAPABLE OF SELF-CARE BECAUSE OF A MENTAL OR PHYSICAL DISABILITY.
  17.  "DOMESTIC  PARTNER"  HAS THE MEANING SET FORTH IN SECTION FOUR OF
THIS CHAPTER.
  18. "SERIOUS HEALTH CONDITION" MEANS AN ILLNESS,  INJURY,  IMPAIRMENT,
OR  PHYSICAL  OR  MENTAL CONDITION THAT: A. REQUIRES INPATIENT CARE IN A
HOSPITAL, HOSPICE OR RESIDENTIAL HEALTH CARE FACILITY;  OR  B.  REQUIRES
CONTINUING TREATMENT BY A HEALTH CARE PROVIDER.
  19.  "PARENT"  MEANS  THE BIOLOGICAL, ADOPTIVE, OR FOSTER PARENT OF AN
EMPLOYEE OR INDIVIDUAL WHO STOOD IN LOCO PARENTIS TO  AN  EMPLOYEE  WHEN
THE EMPLOYEE WAS A SON OR DAUGHTER.
  20.  "FAMILY  MEMBER" MEANS A CHILD, SPOUSE, DOMESTIC PARTNER, PARENT,
GRANDCHILD, MOTHER-IN-LAW OR FATHER-IN-LAW.
  21. PERSONS WHO ARE "IN LOCO PARENTIS" INCLUDE THOSE  WITH  DAY-TO-DAY
RESPONSIBILITIES  TO CARE FOR AND FINANCIALLY SUPPORT A CHILD OR, IN THE
CASE OF AN EMPLOYEE, WHO HAD SUCH RESPONSIBILITY FOR THE  EMPLOYEE  WHEN
THE  EMPLOYEE  WAS  A  CHILD.  A BIOLOGICAL OR LEGAL RELATIONSHIP IS NOT
NECESSARY.
  22. "GRANDCHILD" MEANS THE CHILD OF A CHILD.
  23. "HEALTH CARE PROVIDER" MEANS ANY PROVIDER TREATING  AN  EMPLOYEE'S
INJURY  OR  SICKNESS,  OR  A  FAMILY  MEMBER'S SERIOUS HEALTH CONDITION,
INCLUDING A PHYSICIAN, PODIATRIST, CHIROPRACTOR, DENTIST,  PSYCHOLOGIST,
CERTIFIED  NURSE  MIDWIFE, OR IN THE CASE OF A FAMILY MEMBER WHO ADHERES
TO THE FAITH OR TEACHINGS OF ANY CHURCH  OR  DENOMINATION,  AND  WHO  IN
ACCORDANCE WITH ITS CREED, TENETS OR PRINCIPLES DEPENDS FOR HEALING UPON
PRAYER  THROUGH SPIRITUAL MEANS ALONE IN THE PRACTICE OF RELIGION, BY AN
ACCREDITED PRACTITIONER, CONTAINING FACTS AND OPINIONS AS TO SUCH HEALTH
CONDITION IN COMPLIANCE WITH REGULATIONS OF THE CHAIR.
  24. "FAMILY CARE COST" SHALL MEAN (A) PRIOR TO JULY FIRST,  TWO  THOU-
SAND  THIRTEEN,  FORTY-FIVE  CENTS PER WEEK; AND (B) DURING EVERY SUBSE-
QUENT YEAR COMMENCING ON JULY FIRST, SUCH AMOUNT  AS  SHALL  BE  SET  BY
REGULATION  OF  THE  SUPERINTENDENT  OF INSURANCE FOLLOWING CONSULTATION
WITH THE FAMILY CARE ADVISORY COUNCIL BY APRIL FIRST OF  THE  SAME  YEAR
BASED ON HIS OR HER ACTUARIALLY SOUND ESTIMATION OF THE COST PER EMPLOY-
EE  OF  PROVIDING  FAMILY  CARE  BENEFITS, BUT IN NO EVENT MORE THAN ONE
HUNDRED FIFTEEN PERCENT OF HIS OR HER ESTIMATION OF THE COST PER EMPLOY-
EE OF PROVIDING SEPARATE FAMILY CARE BENEFITS THROUGH THE  STATE  INSUR-
ANCE FUND.
  S 4. Subdivision 1 of section 204 of the workers' compensation law, as
added by chapter 600 of the laws of 1949, is amended to read as follows:
  1.  Disability  benefits  shall be payable to an eligible employee for
disabilities commencing after June thirtieth,  nineteen  hundred  fifty,
beginning  with  the eighth consecutive day of disability and thereafter
during the continuance of disability, subject to the limitations  as  to
maximum  and minimum amounts and duration and other conditions and limi-
tations in this section and in sections two hundred five and two hundred
six OF THIS ARTICLE.   Successive periods of disability  caused  by  the
same  or  related  injury or sickness OR REASON FOR FAMILY CARE shall be
deemed a single period of disability only  if  separated  by  less  than
three  months.  FOR PURPOSES OF THIS SUBDIVISION, DAYS OF DISABILITY FOR
ANY FAMILY CARE SHALL COMMENCE AT THE START OF THE LEAVE PERIOD TAKEN BY
THE EMPLOYEE TO PROVIDE FAMILY CARE.
  S 5. Subdivisions 1, 2, 3, 4, 7 and 8 of section 205 of  the  workers'
compensation law, subdivision 1 as amended by chapter 651 of the laws of
1958,  subdivision  2  as amended by chapter 270 of the laws of 1990 and
subdivisions 3, 4, 7 and 8 as added by chapter 600 of the laws  of  1949

S. 1252                             3

and  as renumbered by chapter 352 of the laws of 1981, are amended and a
new subdivision 9 is added to read as follows:
  1.  [For]  (A)  FOR DISABILITY RESULTING FROM INJURY OR SICKNESS OF AN
EMPLOYEE, FOR more than twenty-six weeks during a  period  of  fifty-two
consecutive calendar weeks or during any one period of disability; OR
  (B)  FOR  FAMILY  CARE,  FOR MORE THAN TWELVE WEEKS DURING A PERIOD OF
FIFTY-TWO CONSECUTIVE CALENDAR WEEKS OR DURING ANY ONE PERIOD OF  FAMILY
CARE;
  2.  for any period of disability RESULTING FROM THE INJURY OR SICKNESS
OF AN EMPLOYEE during which an employee is not under the care of a  duly
licensed physician or with respect to disability resulting from a condi-
tion  of the foot which may lawfully be treated by a duly registered and
licensed podiatrist of the state of New York or with respect to a  disa-
bility  resulting  from  a  condition which may lawfully be treated by a
duly registered and licensed chiropractor of the state of  New  York  or
with  respect  to  a  disability  resulting  from  a condition which may
lawfully be treated by a duly licensed dentist of the state of New  York
or  with  respect  to  a disability resulting from a condition which may
lawfully be treated by a duly registered and  licensed  psychologist  of
the  state  of New York or with respect to a disability resulting from a
condition which may lawfully  be  treated  by  a  duly  certified  nurse
midwife,  for  any period of such disability during which an employee is
neither under the care of a physician nor a podiatrist, nor a chiroprac-
tor, nor a dentist, nor a psychologist, nor a certified  nurse  midwife;
and for any period of disability during which an employee who adheres to
the  faith or teachings of any church or denomination and who in accord-
ance with its creed, tenets or principles depends for healing upon pray-
er through spiritual means alone in the practice  of  religion,  is  not
under the care of a practitioner duly accredited by the church or denom-
ination,  and  provided such employee shall submit to all physical exam-
inations as required by this chapter[.];
  3. for any disability RESULTING FROM INJURY OR SICKNESS OF AN EMPLOYEE
occasioned by the wilful intention of the employee to bring about injury
to or the sickness of himself or another, or resulting from  any  injury
or  sickness sustained in the perpetration by the employee of an illegal
act;
  4. for any day of disability during which the employee performed  work
for  remuneration or profit; BUT NOT INCLUDING ANY REMUNERATION RECEIVED
FOR CARING FOR A FOSTER OR ADOPTED CHILD OR OTHER INDIVIDUAL RESIDING IN
THE EMPLOYEE'S PLACE OF RESIDENCE;
  7. for any disability due to any act of war, declared  or  undeclared,
if  such  act  shall occur after June thirtieth, nineteen hundred fifty,
EXCEPT THAT NOTHING IN THIS  SUBDIVISION  SHALL  BAR  AN  EMPLOYEE  FROM
RECEIVING  BENEFITS UNDER THIS ARTICLE FOR CARE OF A FAMILY MEMBER DISA-
BLED DUE TO AN ACT OF WAR;
  8. for any disability RESULTING FROM AN  INJURY  OR  SICKNESS  TO  THE
EMPLOYEE  commencing  before  the  employee becomes eligible to benefits
hereunder [or commencing prior to July first,  nineteen  hundred  fifty,
but  this  shall  not preclude benefits for recurrence after July first,
nineteen hundred fifty, of a disability commencing prior thereto.];
  9. FOR ANY DAY OF ABSENCE FROM WORK REQUIRED PURSUANT TO ANY DISCIPLI-
NARY PROCESS; OR, IN REGARD TO FAMILY CARE BENEFITS, ANY DAY OF  ABSENCE
FROM  WORK  RESULTING FROM INJURY OR SICKNESS TO THE EMPLOYEE, INCLUDING
ANY LEAVE TAKEN UNDER SECTION SEVENTY-ONE OR SEVENTY-THREE OF THE  CIVIL
SERVICE LAW.

S. 1252                             4

  S  6. The workers' compensation law is amended by adding a new section
205-a to read as follows:
  S  205-A. RELATIONSHIP BETWEEN DISABILITY BENEFITS FOR FAMILY CARE AND
FOR THE EMPLOYEE'S OWN SICKNESS OR ILLNESS. THE RECEIPT OF BENEFITS  FOR
DISABILITY  RESULTING FROM SICKNESS OR INJURY TO THE EMPLOYEE, INCLUDING
PREGNANCY AND CHILDBIRTH, SHALL NOT COUNT  TOWARD  ANY  TIME  LIMITATION
UNDER SUBDIVISION ONE OF SECTION TWO HUNDRED FIVE OF THIS ARTICLE ON THE
RECEIPT  OF  BENEFITS  FOR  FAMILY CARE, AND THE RECEIPT OF BENEFITS FOR
FAMILY CARE SHALL NOT COUNT TOWARD ANY TIME LIMITATION UNDER SUBDIVISION
ONE OF SECTION TWO HUNDRED FIVE OF THIS ARTICLE ON THE RECEIPT OF  BENE-
FITS  FOR  DISABILITY RESULTING FROM SICKNESS OR INJURY TO THE EMPLOYEE,
EXCEPT THAT AN EMPLOYEE MAY RECEIVE  DISABILITY  BENEFITS  ON  ONLY  ONE
CLAIM AT ANY TIME.
  S 7. Subdivision 3 of section 209 of the workers' compensation law, as
amended  by  chapter  415  of  the  laws  of 1983, is amended to read as
follows:
  3. The contribution of each such employee to the  cost  of  disability
benefits provided by this article shall be one-half of one per centum of
the  employee's  wages  paid  to  him  on and after July first, nineteen
hundred fifty, but not in excess of sixty cents per week FOR THE COST OF
DISABILITY BENEFITS FOR SICKNESS OR INJURY, PLUS THE FAMILY  CARE  COST,
AS DEFINED IN SUBDIVISION TWENTY-FOUR OF SECTION TWO HUNDRED ONE OF THIS
ARTICLE.
  S 8. Section 211 of the workers' compensation law is amended by adding
two new subdivisions 7 and 8 to read as follows:
  7. SUCH FAMILY CARE BENEFITS AS ARE PROVIDED FOR IN THIS ARTICLE SHALL
BE  IN ADDITION TO, AND SHALL NOT AMEND, REPEAL OR REPLACE, THE TERMS OF
ANY AGREEMENT THAT IS COLLECTIVELY  NEGOTIATED BETWEEN AN  EMPLOYER  AND
AN  EMPLOYEE  ORGANIZATION,  INCLUDING AGREEMENT OR INTEREST ARBITRATION
AWARDS MADE PURSUANT TO ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW.
  8. NOTHING IN THIS ARTICLE SHALL REQUIRE AN EMPLOYER TO USE  THE  SAME
CARRIER  TO PROVIDE BENEFITS REQUIRED BY OR PERMISSIBLE UNDER THIS ARTI-
CLE FOR DISABILITY RESULTING FROM SICKNESS  OR  INJURY  AS  IT  USES  TO
PROVIDE BENEFITS REQUIRED BY OR PERMISSIBLE UNDER THIS ARTICLE FOR FAMI-
LY CARE. AN EMPLOYER MAY USE A DIFFERENT MEANS, AMONG THOSE SET FORTH IN
SUBDIVISIONS  ONE  THROUGH  FIVE  OF  THIS  SECTION, TO PROVIDE BENEFITS
REQUIRED BY THIS ARTICLE FOR DISABILITY RESULTING FROM SICKNESS OR INJU-
RY, FROM THE MEANS USED TO PROVIDE BENEFITS REQUIRED BY THIS ARTICLE FOR
FAMILY CARE.
  S 9. The workers' compensation law is amended by adding a new  section
211-a to read as follows:
  S  211-A.  PUBLIC  EMPLOYEES; EMPLOYEE OPT IN. 1. FOR PURPOSES OF THIS
SECTION, "PUBLIC EMPLOYEE" MEANS ANY EMPLOYEE OF THE  STATE,  ANY  POLI-
TICAL  SUBDIVISION OF THE STATE, A PUBLIC AUTHORITY OR ANY OTHER GOVERN-
MENTAL AGENCY OR INSTRUMENTALITY. "PUBLIC EMPLOYER" MEANS THE STATE, ANY
POLITICAL SUBDIVISION OF THE STATE, A  PUBLIC  AUTHORITY  OR  ANY  OTHER
GOVERNMENTAL  AGENCY OR INSTRUMENTALITY THEREOF. "EMPLOYEE ORGANIZATION"
SHALL HAVE THE MEANING SET FORTH IN SECTION TWO HUNDRED ONE OF THE CIVIL
SERVICE LAW.
  2. PUBLIC EMPLOYERS SHALL PROVIDE BENEFITS FOR FAMILY CARE  TO  PUBLIC
EMPLOYEES WHERE AN EMPLOYEE ORGANIZATION THAT REPRESENTS THOSE EMPLOYEES
OPTS  IN  TO FAMILY CARE IN ACCORDANCE WITH THE PROCEDURES AND TERMS SET
FORTH IN SUBDIVISION THREE OF THIS SECTION.
  3. AN EMPLOYEE ORGANIZATION MAY OPT IN TO THE FAMILY CARE  BENEFIT  ON
BEHALF OF THOSE EMPLOYEES IT REPRESENTS:

S. 1252                             5

  A.  UPON NOTICE GIVEN TO THE PUBLIC EMPLOYER PRIOR TO APRIL FIRST, TWO
THOUSAND TWELVE, WHICH OPT IN SHALL BECOME EFFECTIVE ONLY ON JULY FIRST,
TWO THOUSAND TWELVE;
  B.  AT  ANY  TIME  UPON NINETY DAYS NOTICE FOR ANY EMPLOYER WHO IS NOT
PROVIDING DISABILITY BENEFITS FOR SICKNESS AND INJURY UNDER SECTION  TWO
HUNDRED  TWELVE  OF  THIS ARTICLE, OR WHO IS SELF-INSURED FOR SUCH BENE-
FITS;
  C. FOR ANY EMPLOYER WHO IS PROVIDING DISABILITY BENEFITS FOR  SICKNESS
AND INJURY UNDER SECTION TWO HUNDRED TWELVE OF THIS ARTICLE, UPON NOTICE
AT LEAST NINETY DAYS PRIOR TO THE EXPIRATION OF THE EMPLOYER'S INSURANCE
POLICY  FOR  SUCH BENEFITS, WHICH OPT IN SHALL BE EFFECTIVE ONLY FOR THE
TIME PERIOD COVERED BY ANY SUBSEQUENT POLICY OR RENEWAL; OR
  D. AT ANY TIME AS IS MUTUALLY AGREED UPON BETWEEN THE EMPLOYEE  ORGAN-
IZATION AND ANY PUBLIC EMPLOYER.
  AN  EMPLOYEE ORGANIZATION THAT HAS OPTED IN TO THE FAMILY CARE BENEFIT
MAY OPT OUT OF IT WITHIN THE TIME PERIODS, AND EFFECTIVE UPON  THE  SAME
DATES,  SET  FORTH  IN THIS PARAGRAPH.   THE EMPLOYEE ORGANIZATION SHALL
PROVIDE NOTICE OF SUCH TO THE BOARD WITHIN SEVEN DAYS OF NOTICE  TO  THE
EMPLOYER.
  4. IN THE ABSENCE OF ANY CONTRARY STATEMENT IN  A COLLECTIVELY NEGOTI-
ATED AGREEMENT UNDER ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW, A PUBLIC
EMPLOYER  MAY  REQUIRE PUBLIC EMPLOYEES WHO OPT IN UNDER THIS SECTION TO
CONTRIBUTE UP TO THE FAMILY CARE COST, AS DEFINED IN  SUBDIVISION  TWEN-
TY-FOUR  OF SECTION TWO HUNDRED ONE OF THIS ARTICLE, PER WEEK IN ACCORD-
ANCE WITH THE PROCEDURE SET FORTH IN SECTION TWO HUNDRED  NINE  OF  THIS
ARTICLE.
  S  10.  Subdivision 1 of section 212 of the workers' compensation law,
as amended by chapter 740 of the laws of 1960, is  amended  to  read  as
follows:
  1.  Any  employer  not  required  by  this  article to provide for the
payment of disability benefits to his employees,  or  to  any  class  or
classes  thereof,  may  become  a  covered  employer or bring within the
provisions of this article such employees or class or classes thereof by
voluntarily electing to provide for payment of [such] benefits FOR DISA-
BILITY RESULTING FROM SICKNESS OR INJURY, FOR FAMILY CARE, OR  BOTH,  in
one  or more of the ways set forth in section two hundred eleven OF THIS
ARTICLE; but such election shall be  subject  to  the  approval  of  the
chairman, and if the employees are required to contribute to the cost of
such  benefits  the  assent  within  thirty days before such approval is
granted, of more than one-half of such employees shall be  evidenced  to
the  satisfaction  of the chairman.  On approval by the chairman of such
election to provide benefits, all the provisions of this  article  shall
become and continue applicable as if the employer were a covered employ-
er  as  defined in this article. The obligation to continue as a covered
employer with respect to employees for whom provision of benefits is not
required under this article, may be discontinued  by  such  employer  on
ninety  days  notice  to  the  chairman in writing and to his employees,
after he has provided for payment of benefits for not less than one year
and with such provision for payment of obligations incurred on and prior
to the termination date as the chairman may approve.  ANY ELECTION BY  A
PUBLIC  EMPLOYER  TO  PROVIDE  FAMILY  CARE  BENEFITS MADE PRIOR TO JULY
FIRST, TWO THOUSAND TWELVE SHALL BE EFFECTIVE ON THAT DATE.
  S 11. Subdivision 2 of section 76 of the workers' compensation law, as
added by chapter 600 of the laws of 1949, is amended to read as follows:
  2. The purposes of the state insurance fund herein created are  hereby
enlarged to provide [for the] insurance [by the state insurance fund of]

S. 1252                             6

FOR  the payment of the benefits required by section two hundred four of
this chapter, INCLUDING BENEFITS FOR FAMILY CARE PROVIDED EITHER IN  THE
SAME  POLICY  WITH  OR IN A SEPARATE POLICY FROM BENEFITS FOR DISABILITY
RESULTING FROM INJURY OR SICKNESS OF AN EMPLOYEE, AND AS PROVIDED PURSU-
ANT TO SECTION TWO HUNDRED ELEVEN-A OF THIS CHAPTER.  A separate fund is
hereby  created within the state insurance fund, which shall be known as
the "disability benefits fund", and which shall consist of all  premiums
received and paid into said fund on account of such insurance, all secu-
rities  acquired by and through the use of moneys belonging to said fund
and of interest earned upon moneys belonging to said fund and  deposited
or  invested  as herein provided. Said disability benefits fund shall be
applicable to the payment  of  benefits,  expenses  and  assessments  on
account of insurance written pursuant to article nine of this chapter.
  S  12.  Subdivisions  1,  2,  3  and  4 of section 217 of the workers'
compensation law, subdivision 1 as amended by chapter 167 of the laws of
1999, subdivisions 2 and 3 as amended by chapter 270 of the laws of 1990
and subdivision 4 as added by chapter 600  of  the  laws  of  1949,  are
amended to read as follows:
  1.  Written  notice  and proof of disability shall be furnished to the
employer by or on behalf of the employee claiming benefits  or,  in  the
case  of  a claimant under section two hundred seven of this article, to
the chair, within thirty days after commencement of the period of  disa-
bility. Additional proof shall be furnished thereafter from time to time
as  the employer or carrier or chair may require but not more often than
once each week. Such proof shall include:
  (A) IN THE CASE OF DISABILITY RESULTING FROM SICKNESS OR INJURY TO THE
EMPLOYEE, a statement of disability by the employee's attending  [physi-
cian  or  attending  podiatrist  or  attending chiropractor or attending
dentist or attending psychologist or attending certified nurse  midwife,
or  in  the case of an employee who adheres to the faith or teachings of
any church or denomination, and who in accordance with its creed, tenets
or principles depends for healing upon prayer  through  spiritual  means
alone  in  the  practice  of  religion,  by  an accredited practitioner,
containing facts and opinions as to such disability in  compliance  with
regulations of the chair.] HEALTH CARE PROVIDER;
  (B)  IN  THE CASE OF FAMILY CARE FOR BONDING WITH A NEW CHILD, A BIRTH
CERTIFICATE, CERTIFICATE OF ADOPTION, OR OTHER COMPETENT EVIDENCE  SHOW-
ING  THAT  THE EMPLOYEE IS THE PARENT OF A CHILD WITHIN TWELVE MONTHS OF
THAT CHILD'S BIRTH OR PLACEMENT FOR ADOPTION OR  FOSTER  CARE  WITH  THE
EMPLOYEE;
  (C) IN THE CASE OF BENEFITS FOR CARE OF A FAMILY MEMBER WITH A SERIOUS
HEALTH CONDITION:
  (I)  A STATEMENT BY THE FAMILY MEMBER'S HEALTH CARE PROVIDER, CONTAIN-
ING FACTS AND OPINIONS AS TO SUCH HEALTH CONDITION  IN  COMPLIANCE  WITH
REGULATIONS OF THE CHAIR; AND
  (II) A STATEMENT SUBSCRIBED BY THE EMPLOYEE AND AFFIRMED BY HIM OR HER
AS  TRUE  UNDER  PENALTIES  OF  PERJURY, OR OTHER EQUIVALENT DOCUMENTARY
PROOF, THAT THE EMPLOYEE IS A PRIMARY CARE GIVER FOR THE  FAMILY  MEMBER
DURING THE TIME OF DISABILITY.
  Failure  to  furnish notice or proof within the time and in the manner
above provided shall not invalidate the claim but no benefits  shall  be
required to be paid for any period more than two weeks prior to the date
on which the required proof is furnished unless it shall be shown to the
satisfaction  of  the  chair  not  to  have  been reasonably possible to
furnish such notice or proof and that such notice or proof was furnished
as soon as possible; provided, however, that no benefits shall  be  paid

S. 1252                             7

unless  the  required proof of disability is furnished within twenty-six
weeks after commencement of the period of disability.  No limitation  of
time  provided  in  this  section shall run as against any person who is
mentally  incompetent,  or physically incapable of providing such notice
as a result of a serious medical condition, or a minor so long  as  such
person has no guardian of the person and/or property.
  2. An employee claiming benefits FOR HIS OR HER SICKNESS OR INJURY, OR
THE FAMILY MEMBER OF SUCH EMPLOYEE IN ANY CASE WHERE THE EMPLOYEE CLAIMS
FAMILY  CARE BENEFITS FOR PROVIDING CARE TO THAT FAMILY MEMBER shall, as
requested by the employer or  carrier,  submit  himself  or  herself  at
intervals,  but  not more than once a week, for examination by a [physi-
cian or podiatrist or chiropractor or dentist or psychologist or  certi-
fied  nurse  midwife]  RELEVANT  HEALTH  CARE PROVIDER designated by the
employer or carrier. All such examinations shall be without cost to  the
employee  OR  FAMILY  MEMBER  and shall be held at a reasonable time and
place.
  3. The chair may direct the claimant WHO SEEKS DISABILITY BENEFITS FOR
HIS OR HER SICKNESS OR INJURY, OR THE CLAIMANT'S FAMILY MEMBER WHERE THE
CLAIMANT SEEKS DISABILITY BENEFITS FOR FAMILY LEAVE TO PROVIDE  CARE  TO
THAT  FAMILY  MEMBER  to submit to examination by a [physician or podia-
trist or chiropractor or dentist or psychologist] RELEVANT  HEALTH  CARE
PROVIDER  designated  by  him  or  her in any case in which the claim to
disability benefits is contested and in claims arising under section two
hundred seven OF THIS ARTICLE, and in other cases as the chair or  board
may require.
  4.  Refusal  of  the  claimant  OR FAMILY MEMBER without good cause to
submit to any such examination shall disqualify [him] THE CLAIMANT  from
all  benefits  hereunder  for  the  period of such refusal, except as to
benefits already paid.
  S 13. The opening paragraph of section 221  of  the  workers'  compen-
sation law, as separately amended by chapters 425 and 500 of the laws of
1985, is amended to read as follows:
  Within  twenty-six  weeks of written notice of rejection of claim, the
employee may file with the chairman a notice that his or her  claim  for
disability  benefits  has  not  been paid, and the employee shall submit
proof of disability and of his or her employment, wages and other  facts
reasonably  necessary  for determination of the employee's right to such
benefits. Failure to file such notice within the time provided,  may  be
excused  by  the  chairman if it can be shown to the satisfaction of the
chairman not to have been reasonably possible to furnish such notice and
that such notice was furnished as soon as possible.   On demand  of  the
chairman the employer or carrier shall forthwith deliver to the chairman
PROOF  OF  DISABILITY, INCLUDING IF RELEVANT the original or a true copy
of the attending physician's or  attending  podiatrist's  or  accredited
practitioner's  statement, wage and employment data and all other papers
in the possession of the employer or carrier with respect to such claim.
  S 14. Subdivision 2 of section 229 of the workers'  compensation  law,
as  added  by  chapter  271  of  the laws of 1985, is amended to read as
follows:
  2. Whenever an employee of a covered  employer  who  is  eligible  for
benefits  under section two hundred four of this article shall be absent
from work due to a disability as defined in subdivision nine of  section
two  hundred  one  of this article for more than seven consecutive days,
the employer shall provide the employee with a written statement of  the
employee's  rights under this article in a form prescribed by the chair-
man. The statement shall be provided to the employee within  five  busi-

S. 1252                             8

ness days after the employee's seventh consecutive day of absence due to
disability  or  within  five  business  days after the employer knows or
should know that the employee's absence is due to disability,  whichever
is later. EACH COVERED EMPLOYER SHALL PROVIDE EACH EMPLOYEE WITH A TYPE-
WRITTEN, PRINTED OR ELECTRONIC NOTICE IN A FORM PRESCRIBED BY THE CHAIR,
STATING  THAT  THE  EMPLOYER  HAS PROVIDED FOR THE PAYMENT OF DISABILITY
BENEFITS AS REQUIRED BY THIS ARTICLE WITHIN THIRTY DAYS OF THE EFFECTIVE
DATE OF THE CHAPTER OF THE LAWS OF TWO  THOUSAND  ELEVEN  WHICH  AMENDED
THIS  SUBDIVISION.    EACH COVERED EMPLOYER SHALL PROVIDE SUCH NOTICE TO
ALL NEW EMPLOYEES WITHIN THIRTY DAYS OF THEIR FIRST DAY OF WORK.
  S 15. The workers' compensation law is amended by adding a new section
239-a to read as follows:
  S 239-A. FAMILY CARE STUDY AND MONITORING.  1.  THE INSURANCE  DEPART-
MENT  SHALL  STUDY,  AND  REPORT  TO THE GOVERNOR AND BOTH HOUSES OF THE
LEGISLATURE BY APRIL FIRST, TWO THOUSAND TWELVE, ON THE FEASIBILITY  AND
IMPACT OF COMMUNITY RATING DISABILITY INSURANCE OR ANY ASPECT THEREOF.
  2.  THERE  SHALL  BE  CREATED  THE FAMILY CARE ADVISORY COUNCIL, WHICH
SHALL CONSIST OF FIFTEEN MEMBERS TO BE  APPOINTED  BY  THE  GOVERNOR  AS
FOLLOWS: TWO ON RECOMMENDATION BY THE NEW YORK STATE AMERICAN FEDERATION
OF  LABOR-CONGRESS  OF  INDUSTRIAL  ORGANIZATIONS,  ONE OF WHOM SHALL BE
REPRESENTATIVE OF PUBLIC EMPLOYEE ORGANIZATIONS CERTIFIED UNDER  ARTICLE
FOURTEEN OF THE CIVIL SERVICE LAW, PARTICIPATING IN THE PAID FAMILY CARE
PLAN,  ONE  OF  WHOM  IS  REPRESENTATIVE  OF UNIONS REPRESENTING WORKERS
EMPLOYED IN THE PRIVATE SECTOR; TWO WHO ARE REPRESENTATIVES OF ORGANIZA-
TIONS THAT REPRESENT EITHER COVERED BUSINESS OR PUBLIC EMPLOYERS IN  NEW
YORK  STATE  PARTICIPATING  IN  THE PAID FAMILY LEAVE PLAN; TWO ON NOMI-
NATION OF THE SPEAKER OF THE ASSEMBLY; ONE ON NOMINATION BY THE MINORITY
LEADER OF THE ASSEMBLY; TWO ON NOMINATION BY THE TEMPORARY  PRESIDENT OF
THE SENATE; ONE ON NOMINATION BY THE MINORITY LEADER OF THE SENATE;  AND
THE SUPERINTENDENT OF INSURANCE, COMMISSIONER OF LABOR  AND CHAIR OF THE
WORKERS'  COMPENSATION BOARD, WHO SHALL SERVE AS MEMBERS EX OFFICIO. THE
COMMISSIONER OF LABOR SHALL SERVE AS CHAIR OF THE  COUNCIL.  THE  SUPER-
INTENDENT  OF  INSURANCE  AND  CHAIR  OF THE WORKERS' COMPENSATION BOARD
SHALL CONSULT REGULARLY WITH THE COUNCIL ON THE  IMPLEMENTATION  OF  THE
FAMILY  CARE  BENEFIT. THE DEPARTMENT OF LABOR, THE INSURANCE DEPARTMENT
AND THE WORKERS' COMPENSATION BOARD SHALL PROVIDE ALL NECESSARY  PERSON-
NEL AND LOGISTICAL SUPPORT AS MAY BE NECESSARY TO COMPLETE THE DUTIES OF
THE  ADVISORY  COUNCIL. THE COUNCIL OR ANY OF ITS MEMBERS MAY ISSUE SUCH
RECOMMENDATIONS OR REPORTS AS THEY DEEM WARRANTED  ON  THE  FAMILY  CARE
BENEFIT,  INCLUDING ON THE SCOPE OF THE BENEFIT, PROBLEMS WITH THE BENE-
FIT; FUNDING OF THE BENEFIT    INCLUDING  PASS-THROUGH  COSTS;  POSSIBLE
STATUTORY  AMENDMENTS AND REGULATORY CHANGES; USAGE RATES; OUTREACH; AND
COMMUNITY RATING. ANY SUCH RECOMMENDATIONS OR REPORTS SHALL BE  PROVIDED
TO  THE  GOVERNOR, SUPERINTENDENT OF INSURANCE, SPEAKER OF THE ASSEMBLY,
TEMPORARY PRESIDENT OF THE SENATE AND MINORITY LEADERS OF THE SENATE AND
ASSEMBLY.  EACH MEMBER OF THE COMMISSION SHALL SERVE  A  TERM  OF  THREE
YEARS.  AN APPOINTMENT TO FILL A VACANCY SHALL BE MADE FOR THE REMAINDER
OF THE AFFECTED TERM. MEMBERS SHALL RECEIVE NO COMPENSATION.
  S 16. Paragraph 3 of subsection (a) of section 1113 of  the  insurance
law is amended as follows:
  (3) "Accident and health insurance," means (i) insurance against death
or  personal  injury  by  accident  or by any specified kind or kinds of
accident and insurance  against  sickness,  ailment  or  bodily  injury,
including  insurance  providing  disability benefits pursuant to article
nine of the workers' compensation law,  INCLUDING  ANY  INSURANCE  UNDER
THAT  ARTICLE  FOR  FAMILY  CARE BENEFITS, DISABILITY BENEFITS RESULTING

S. 1252                             9

FROM SICKNESS OR INJURY, OR BOTH, except as specified in item (ii) here-
of; and (ii) non-cancellable  disability  insurance,  meaning  insurance
against  disability  resulting  from  sickness, ailment or bodily injury
(but  excluding  insurance  solely  against accidental injury) under any
contract which does not give the insurer the option to cancel or  other-
wise terminate the contract at or after one year from its effective date
or renewal date.
  S 17. This act shall take effect immediately; provided, however, that:
  (a)  Sections  one,  two,  three, four, five, six, seven, eight, nine,
ten, twelve, thirteen, fourteen and  sixteen  of  this  act  shall  take
effect July 1, 2012.
  (b)  Paragraph  a  of  subdivision  3 of section 211-a of the workers'
compensation law, as added by section nine of this act  allowing  public
employees  to  opt  in to family care benefits prior to July 1, 2012 and
paragraph (b) of subdivision 1 of section 212 of  the  workers'  compen-
sation law as added by section ten of this act allowing public employers
to  opt  in  to  family  care benefits prior to July 1, 2012, shall take
effect immediately.
  (c) Effective immediately, the addition, amendment  and/or  repeal  of
any  rules  or  regulations necessary for the implementation of this act
and any administrative steps necessary to  effectuate  the  purposes  of
this  act  on  its effective date are authorized and directed to be made
and completed on or before such effective date.

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