The New York State Senate

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

                                  8380

                            I N  S E N A T E

                               May 4, 2018
                               ___________

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

AN ACT to amend the workers' compensation law, in relation to paid fami-
  ly leave and bereavement

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

  Section  1. Subdivision 15 of section 201 of the workers' compensation
law, as added by section 2 of part SS of chapter 54 of the laws of 2016,
is amended to read as follows:
  15. "Family leave" 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 INCLUDING BEREAVEMENT
UPON THE DEATH OF SUCH FAMILY MEMBER; or (b) to bond with the employee's
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; or (c) because of any qualifying exigency
as  interpreted  under  the  family  and medical leave act, 29 U.S.C.S §
2612(a)(1)(e) and 29 C.F.R. S.825.126(a)(1)-(8), arising out of the fact
that the spouse, domestic partner, child, or parent of the  employee  is
on  active  duty  (or has been notified of an impending call or order to
active duty) in the armed forces of the  United  States;  OR  (D)  LEAVE
TAKEN  FOR  THE  PURPOSES  OF  BEREAVEMENT  DUE TO THE DEATH OF A FAMILY
MEMBER.
  § 2. Paragraph (a) of subdivision 2 of section  204  of  the  workers'
compensation  law, as added by section 5 of part SS of chapter 54 of the
laws of 2016, is amended to read as follows:
  (a) The weekly benefit for family leave that occurs (i)  on  or  after
January first, two thousand eighteen shall not exceed eight weeks during
any  fifty-two  week  calendar  period and shall be fifty percent of the
employee's average weekly wage but shall not exceed fifty percent of the
state average weekly wage, (ii) on or after January first, two  thousand
nineteen  shall  not exceed ten weeks during any fifty-two week calendar
period and shall be fifty-five percent of the employee's average  weekly

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD15544-02-8

S. 8380                             2

wage but shall not exceed fifty-five percent of the state average weekly
wage,  (iii)  on  or  after January first, two thousand twenty shall not
exceed ten weeks during any fifty-two week calendar period, NOT  INCLUD-
ING  FAMILY  LEAVE DUE TO BEREAVEMENT, and shall be sixty percent of the
employee's average weekly wage but shall not exceed sixty percent of the
state average weekly wage, and (iv) on or after January  first  of  each
succeeding year, shall not exceed twelve weeks during any fifty-two week
calendar  period,  NOT  INCLUDING  FAMILY  LEAVE DUE TO BEREAVEMENT, and
shall be sixty-seven percent of the employee's average weekly  wage  but
shall not exceed sixty-seven percent of the New York state average week-
ly  wage  in  effect.    ON  OR AFTER JANUARY FIRST, TWO THOUSAND TWENTY
CLAIMANTS WHO ARE ELIGIBLE FOR FAMILY LEAVE  DUE  TO  BEREAVEMENT  SHALL
RECEIVE  UP  TO  TWO  WEEKS  OF  FAMILY LEAVE FOR BEREAVEMENT DURING ANY
FIFTY-TWO WEEK CALENDAR PERIOD AND SHALL BE SIXTY PERCENT OF THE EMPLOY-
EE'S AVERAGE WEEKLY WAGE BUT SHALL NOT EXCEED SIXTY PERCENT OF THE STATE
AVERAGE WEEKLY WAGE, ON OR AFTER JANUARY FIRST, TWO THOUSAND  TWENTY-ONE
CLAIMANTS  WHO  ARE  ELIGIBLE  FOR FAMILY LEAVE DUE TO BEREAVEMENT SHALL
RECEIVE UP TO FOUR WEEKS OF FAMILY  LEAVE  FOR  BEREAVEMENT  DURING  ANY
FIFTY-TWO  WEEK  CALENDAR PERIOD AND SHALL BE SIXTY-SEVEN PERCENT OF THE
EMPLOYEE'S AVERAGE WEEKLY WAGE BUT SHALL NOT EXCEED SIXTY-SEVEN  PERCENT
OF  THE  STATE  AVERAGE  WEEKLY  WAGE, ON OR AFTER JANUARY FIRST OF EACH
SUCCEEDING YEAR, CLAIMANTS WHO ARE ELIGIBLE  FOR  FAMILY  LEAVE  DUE  TO
BEREAVEMENT  SHALL  RECEIVE UP TO SIX WEEKS OF FAMILY LEAVE FOR BEREAVE-
MENT DURING ANY FIFTY-TWO WEEK CALENDAR PERIOD AND SHALL BE  SIXTY-SEVEN
PERCENT  OF  THE  EMPLOYEE'S  AVERAGE  WEEKLY  WAGE BUT SHALL NOT EXCEED
SIXTY-SEVEN PERCENT OF THE STATE AVERAGE  WEEKLY  WAGE  IN  EFFECT  EACH
YEAR.  The superintendent of financial services shall have discretion to
delay the increases in  the  family  leave  benefit  level  provided  in
subparagraphs  (ii),  (iii),  and  (iv) of this paragraph by one or more
calendar years. In determining whether to  delay  the  increase  in  the
family  leave  benefit  for  any  year,  the superintendent of financial
services shall consider: (1) the current cost to employees of the family
leave benefit and any expected change in  the  cost  after  the  benefit
increase;  (2) the current number of insurers issuing insurance policies
with a family leave benefit and any expected change  in  the  number  of
insurers  issuing  such  policies  after  the  benefit increase; (3) the
impact of the benefit increase on employers' business  and  the  overall
stability  of  the  program  to  the  extent that information is readily
available; (4) the impact of  the  benefit  increase  on  the  financial
stability of the disability and family leave insurance market and carri-
ers; and (5) any additional factors that the superintendent of financial
services  deems  relevant.  If  the superintendent of financial services
delays the increase in the family leave benefit level for  one  or  more
calendar  years,  the  family leave benefit level that shall take effect
immediately following the delay shall be the  same  benefit  level  that
would have taken effect but for the delay. The weekly benefits for fami-
ly  leave  that  occurs on or after January first, two thousand eighteen
shall not be less than one hundred dollars per week except that  if  the
employee's  wages  at the time of family leave are less than one hundred
dollars per week, the employee shall receive  his  or  her  full  wages.
Benefits  may be payable to employees for paid family leave taken inter-
mittently or for less than a full work week in increments  of  one  full
day or one fifth of the weekly benefit.
  §  3.  Paragraphs  (a)  and (b) of subdivision 2 of section 205 of the
workers' compensation law, as added by section 6 of part SS  of  chapter
54 of the laws of 2016, are amended to read as follows:

S. 8380                             3

  (a) For more than [twelve weeks, or] the maximum duration permitted as
set  forth  in  paragraph  (a) of subdivision two of section two hundred
four of this article, during a period of fifty-two consecutive  calendar
weeks,  or  for  any  period in which the family leave combined with the
disability  benefits previously paid exceeds twenty-six weeks during the
same fifty-two consecutive calendar weeks PLUS ANY FAMILY LEAVE  DUE  TO
BEREAVEMENT;
  (b)  For  any  period  of  family leave wherein the notice and medical
certification, OR DEATH CERTIFICATE, as prescribed by the chair has  not
been  filed. At the discretion of the chair or chair's designee pursuant
to section two hundred twenty-one of this article, the family member who
is the recipient of care may be required to submit to a  physical  exam-
ination by a qualified health care provider UNLESS SUCH FAMILY MEMBER IS
UNABLE  TO  BE EXAMINED DUE TO DEATH. Such examination shall be paid for
by the carrier; and
  § 4. Subdivision 5 of section 205 of the workers' compensation law, as
added by section 6 of part SS of chapter 54 of  the  laws  of  2016,  is
amended to read as follows:
  5.  In any case in which the necessity for family leave is foreseeable
based on an expected birth or placement, the employee shall provide  the
employer with not less than thirty days notice before the date the leave
is to begin, of the employee's intention to take family leave under this
article,  except  that  if  the  date of the birth or placement requires
leave to begin in less than thirty days, the employee shall provide such
notice as is practicable. In any case in which the necessity for  family
leave  is  foreseeable  based on planned medical treatment, the employee
shall provide the employer with not less than thirty days notice, before
the date the leave is to begin, of the employees intention to take fami-
ly leave under this article, except that if the date  of  the  treatment
requires  leave  to  begin  in less than thirty days, the employee shall
provide such notice as is practicable.  IN THE CASE OF FAMILY LEAVE  DUE
TO BEREAVEMENT NOTICE SHALL BE PROVIDED AS SOON AS PRACTICABLE.
  § 5. Subdivision 1 of section 217 of the workers' compensation law, as
amended  by  section 16 of part SS of chapter 54 of the laws of 2016, is
amended to read as follows:
  1. Written notice and proof of disability or proof of need for  family
leave 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  disability. 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 statement of  disability  by  the  employee's  attending
physician or attending podiatrist or attending chiropractor or attending
dentist  or  attending psychologist or attending certified nurse midwife
or family leave care recipient's health care provider, 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.  IN  THE EVENT THAT THE CLAIMANT IS ELIGIBLE FOR FAMILY LEAVE DUE
TO BEREAVEMENT, A DEATH CERTIFICATE SHALL SERVE  AS  PROOF  OF  NEED  OF
LEAVE.  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

S. 8380                             4

the  date  on  which  the required proof is furnished unless it shall be
shown to the satisfaction of the  chair  not  to  have  been  reasonably
possible  to  furnish such notice or proof and that such notice or proof
was  furnished  as soon as possible; provided, however, that no benefits
shall be paid unless the required proof of disability is furnished with-
in the period of actual disability or family leave that does not  exceed
the statutory maximum period permitted under section two hundred four of
this  article.  No limitation of time provided in this section shall run
as against any disabled employee who is mentally incompetent,  or  phys-
ically  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.
  §  6. Subdivisions 3 and 4 of section 217 of the workers' compensation
law, as amended by section 16 of part SS of chapter 54 of  the  laws  of
2016, are amended to read as follows:
  3.  The  chair  or  chair's  designee, pursuant to section two hundred
twenty-one of this article, may direct the claimant or family leave care
recipient to submit to examination by a health care provider  designated
by  him  or  her  in any case in which the claim to disability or family
leave 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. IN THE EVENT THAT THE FAMILY MEMBER  OR  THE  FAMILY  LEAVE
CARE RECIPIENT IS UNABLE TO BE EXAMINED DUE TO DEATH, THIS SECTION SHALL
NOT APPLY.
  4. Refusal of the claimant or family leave care recipient without good
cause to submit to any such examination shall disqualify the claimant or
employee  from  all  benefits  hereunder for the period of such refusal,
except as to benefits already paid. IN THE EVENT THAT THE FAMILY  MEMBER
OR  FAMILY  LEAVE  CARE RECIPIENT IS UNABLE TO BE EXAMINED DUE TO DEATH,
THIS SECTION SHALL NOT APPLY.
  § 7. This act shall take effect immediately and  shall  apply  to  all
policies  or  contracts issued, renewed, modified, altered or amended on
or after January 1, 2020.