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.