S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9479
 
                           I N  A S S E M B L Y
 
                               March 7, 2022
                                ___________
 
 Introduced  by M. of A. SOLAGES -- read once and referred to the Commit-
   tee on Labor
 
 AN ACT to amend the workers' compensation law,  in  relation  to  expand
   eligibility  for  temporary disability insurance and paid family leave
   benefits
 
   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 THE INABILITY OF AN EMPLOYEE TO WORK  IN
 ORDER  TO  RECEIVE  MEDICAL TREATMENT FOR A SERIOUS HEALTH CONDITION NOT
 ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT.
   § 2.  Section 203 of the workers'  compensation  law,  as  amended  by
 section  3  of  part SS of chapter 54 of the laws of 2016, is amended to
 read as follows:
   § 203. Employees eligible for benefits under section two hundred  four
 of  this article. Employees in employment of a covered employer for four
 or more consecutive weeks and employees in employment  during  the  work
 period usual to and available during such four or more consecutive weeks
 in  any  trade  or  business in which they are regularly employed and in
 which hiring from day to day of such employees is the  usual  employment
 practice  shall  be eligible for disability AND FAMILY LEAVE benefits as
 provided in section two hundred four  of  this  article.  [Employees  in
 employment  of  a  covered  employer  for twenty-six or more consecutive
 weeks and employees in employment during the work period  usual  to  and
 available  during such twenty-six or more consecutive weeks in any trade
 or business in which they are regularly employed  and  in  which  hiring
 from day to day of such employees is the usual employment practice shall
 be eligible for family leave benefits as provided in section two hundred
 four of this article.  Every such employee shall continue to be eligible
 for  family leave benefits only during employment with a covered employ-
 er.] Every such employee shall continue to be  eligible  for  disability
 AND  FAMILY  LEAVE  benefits  during such employment and for a period of
 four weeks after such employment terminates regardless  of  whether  the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD14521-01-2
 A. 9479                             2
 
 employee  performs  any  work  for remuneration or profit in non-covered
 employment. If during such four week period the  employee  performs  any
 work for remuneration or profit for another covered employer the employ-
 ee  shall become eligible for disability AND FAMILY LEAVE benefits imme-
 diately with respect to that employment. In addition every such employee
 who has previously completed four or more consecutive weeks  in  employ-
 ment  with  the  covered  employer for purposes of disability AND FAMILY
 LEAVE benefits[, or twenty-six or more consecutive weeks  in  employment
 with  the  covered  employer  for  purposes  of  paid family leave,] and
 returns to work with the same employer after  an  agreed  and  specified
 unpaid  leave  of  absence or vacation without pay shall become eligible
 for benefits immediately with respect to such  employment.  An  employee
 who  during  a period in which he or she is eligible to receive benefits
 under subdivision two of section  two  hundred  seven  of  this  article
 returns  to  employment  with  a covered employer and an employee who is
 currently receiving unemployment insurance benefits  or  benefits  under
 section  two hundred seven of this article and who returns to employment
 with a covered employer shall become eligible for disability AND  FAMILY
 LEAVE  benefits immediately with respect to such employment. An employee
 regularly in the employment of a single employer on a work schedule less
 than the employer's normal work week shall become eligible for disabili-
 ty leave benefits on the twenty-fifth day  of  such  regular  employment
 [and for purposes of paid family leave an employer shall become eligible
 for  benefits  on  the  one  hundred  seventy-fifth  day of such regular
 employment]. An employee who is eligible for disability and family leave
 benefits in the employment of a covered employer shall  not  be  deemed,
 for  the  purposes  of  this article, to have such employment terminated
 during any period he or  she  is  eligible  to  receive  benefits  under
 section  two  hundred  four of this article with respect to such employ-
 ment.
   § 3. Section 203-a of the  workers'  compensation  law,  as  added  by
 section  4  of  part SS of chapter 54 of the laws of 2016, is amended to
 read as follows:
   § 203-a. Retaliatory  action  prohibited  for  DISABILITY  AND  family
 leave.  1.  The provisions of section one hundred twenty of this chapter
 and section two hundred forty-one of this article shall be applicable to
 DISABILITY AND family leave.
   2. Nothing in this section shall be deemed  to  diminish  the  rights,
 privileges,  or remedies of any employee under any collective bargaining
 agreement or employment contract.
   § 4. Section 203-b of the  workers'  compensation  law,  as  added  by
 section  4  of  part SS of chapter 54 of the laws of 2016, is amended to
 read as follows:
   § 203-b. Reinstatement  following  DISABILITY  OR  family  leave.  Any
 eligible employee of a covered employer who takes leave, INCLUDING LEAVE
 DUE  TO  A  DISABILITY,  under this article shall be entitled, on return
 from such leave, to be restored by  the  employer  to  the  position  of
 employment  held  by  the  employee  when  the leave commenced, or to be
 restored to a comparable position with comparable  employment  benefits,
 pay  and  other terms and conditions of employment. The taking of family
 leave OR LEAVE DUE TO A DISABILITY shall not result in the loss  of  any
 employment  benefit  accrued  prior  to  the  date  on  which  the leave
 commenced. Nothing in this section shall be  construed  to  entitle  any
 restored employee to the accrual of any seniority or employment benefits
 during  any  period of leave, or any right, benefit or position to which
 A. 9479                             3
 
 the employee would have been entitled had the  employee  not  taken  the
 leave.
   §  5.    Section  203-c  of the workers' compensation law, as added by
 section 4 of part SS of chapter 54 of the laws of 2016,  is  amended  to
 read as follows:
   §  203-c. Health  insurance  during DISABILITY OROFF; family leave. In
 accordance  with  the  Family  and  Medical  Leave  Act  (29  U.S.C.  §§
 2601-2654), during any period of DISABILITY OR family leave the employer
 shall maintain any existing health benefits of the employee in force for
 the duration of such leave as if the employee had continued to work from
 the  date  he or she commenced DISABILITY OR family leave until the date
 he or she returns to employment.
   § 6. Paragraph (b) of subdivision 2 of section  204  of  the  workers'
 compensation  law,  as  amended by section 5 of part SS of chapter 54 of
 the laws of 2016, is amended to read as follows:
   (b)  THE WEEKLY BENEFIT WHICH THE DISABLED  EMPLOYEE  IS  ENTITLED  TO
 RECEIVE  FOR  DISABILITY COMMENCING ON OR AFTER JANUARY FIRST, TWO THOU-
 SAND TWENTY-THREE 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 WEEKLY WAGE IN EFFECT; EXCEPT THAT IF THE EMPLOYEE'S AVER-
 AGE  WEEKLY  WAGE IS LESS THAN ONE HUNDRED DOLLARS, THE BENEFIT SHALL BE
 SUCH AVERAGE WEEKLY WAGE. The weekly benefit which the disabled employee
 is entitled to receive for disability commencing on or after May  first,
 nineteen  hundred eighty-nine shall be one-half of the employee's weekly
 wage, but in no case shall  such  benefit  exceed  one  hundred  seventy
 dollars;  except that if the employee's average weekly wage is less than
 twenty dollars, the benefit shall be such average weekly wage. The week-
 ly benefit which the disabled employee is entitled to receive for  disa-
 bility  commencing  on or after July first, nineteen hundred eighty-four
 shall be one-half of the employee's weekly wage, but in  no  case  shall
 such  benefit  exceed one hundred forty-five dollars; except that if the
 employee's average weekly wage is less than twenty dollars, the  benefit
 shall be such average weekly wage. The weekly benefit which the disabled
 employee  is  entitled  to receive for disability commencing on or after
 July first, nineteen hundred eighty-three and prior to July first, nine-
 teen hundred eighty-four shall be one-half  of  the  employee's  average
 weekly  wage, but in no case shall such benefit exceed one hundred thir-
 ty-five dollars nor be less than twenty  dollars;  except  that  if  the
 employee's  average  weekly wage is less than twenty dollars the benefit
 shall be such average weekly wage. The weekly benefit which the disabled
 employee is entitled to receive for disability commencing  on  or  after
 July  first,  nineteen  hundred  seventy-four,  and prior to July first,
 nineteen hundred eighty-three, shall be one-half of the employee's aver-
 age weekly wage, but in no case shall such  benefit  exceed  ninety-five
 dollars  nor  be less than twenty dollars; except that if the employee's
 average weekly wage is less than twenty dollars, the  benefit  shall  be
 such average weekly wage. The weekly benefit which the disabled employee
 is entitled to receive for disability commencing on or after July first,
 nineteen  hundred  seventy  and  prior  to  July first, nineteen hundred
 seventy-four shall be one-half of the employee's  average  weekly  wage,
 but  in  no  case  shall such benefit exceed seventy-five dollars nor be
 less than twenty dollars; except that if the employee's  average  weekly
 wage is less than twenty dollars the benefit shall be such average week-
 ly  wage.  For any period of disability less than a full week, the bene-
 fits payable shall be calculated by dividing the weekly benefit  by  the
 number  of  the employee's normal work days per week and multiplying the
 A. 9479                             4
 
 quotient by the number of normal work days in such period of disability.
 The weekly benefit for a disabled employee who is concurrently  eligible
 for  benefits in the employment of more than one covered employer shall,
 within the maximum and minimum herein provided, be one-half of the total
 of  the  employee's  average weekly wages received from all such covered
 employers, and shall be allocated in the proportion of their  respective
 average weekly wage payments.
   §  7.  Section 207 of the workers' compensation law, as added by chap-
 ter 600 of the laws of 1949, subdivisions 1 and 2 as amended by  chapter
 438  of the laws of 1964, subdivision 4 as amended by chapter 436 of the
 laws of 1986, and subdivision 5 as added by section  8  of  part  SS  of
 chapter 54 of the laws of 2016, is amended to read as follows:
   § 207. Disability while unemployed. 1. Employees entitled to unemploy-
 ment  insurance  benefits.  An  employee whose employment with a covered
 employer is terminated and who during a period  of  unemployment  within
 twenty-six  weeks  immediately  following such termination of employment
 shall become ineligible for benefits currently being claimed  under  the
 unemployment insurance law solely because of disability commencing after
 June thirtieth, nineteen hundred fifty OR NEED FOR FAMILY LEAVE COMMENC-
 ING  AFTER  JANUARY FIRST, TWO THOUSAND TWENTY-THREE, and who on the day
 such disability OR NEED FOR FAMILY LEAVE commences is  not  employed  or
 working  for  remuneration  or profit and is not then otherwise eligible
 for benefits under this article, shall be entitled to receive disability
 OR FAMILY LEAVE benefits as herein provided for each week of such  disa-
 bility  OR  NEED  FOR FAMILY LEAVE for which week he would have received
 unemployment insurance benefits if he OR SHE were not so disabled OR DID
 NOT HAVE SUCH NEED FOR FAMILY LEAVE.  The weekly benefit of such  [disa-
 bled]  employee  shall  be  computed  in  the same manner as provided in
 subdivision two of section two hundred four OF  THIS  ARTICLE,  and  the
 benefits  he OR SHE is entitled to receive shall be subject to the limi-
 tations as to maximum and minimum amounts and duration and other  condi-
 tions  and  limitations  prescribed  in  sections  two hundred four, two
 hundred five and two hundred six OF THIS ARTICLE.
   2. Employees not eligible  for  unemployment  insurance  benefits.  An
 employee  whose employment with a covered employer is terminated and who
 was in employment of one or more covered employers and was paid wages of
 at least thirteen dollars in such employment in each of twenty  calendar
 weeks during the thirty calendar weeks immediately preceding the date he
 OR SHE last worked for such covered employer, and who during a period of
 unemployment  within  twenty-six weeks immediately following such termi-
 nation of employment is not eligible to benefits under the  unemployment
 insurance  law  because of lack of qualifying wages but who during unem-
 ployment has evidenced his OR HER  continued  attachment  to  the  labor
 market,  shall  be  eligible  for  benefits under the provisions of this
 subdivision for disability commencing  after  June  thirtieth,  nineteen
 hundred  fifty  OR NEED FOR FAMILY LEAVE COMMENCING AFTER JANUARY FIRST,
 TWO THOUSAND TWENTY-THREE.    If  such  employee  becomes  disabled  and
 continues to be disabled for at least eight consecutive days during such
 twenty-six  week  period  and on the day such disability commences he OR
 SHE is not employed or working for remuneration or  profit  and  is  not
 then otherwise eligible for benefits under this article, he OR SHE shall
 be  entitled  to receive disability benefits, as herein provided, begin-
 ning with the eighth consecutive day of such disability, for  each  week
 of  such  disability  thereafter. IF SUCH EMPLOYEE HAS A NEED FOR FAMILY
 LEAVE DURING SUCH TWENTY-SIX WEEK PERIOD AND  ON  THE  DAY  SUCH  FAMILY
 LEAVE  COMMENCES SUCH PERSON IS NOT EMPLOYED OR WORKING FOR REMUNERATION
 A. 9479                             5
 
 OR PROFIT AND IS NOT THEN OTHERWISE ELIGIBLE  FOR  BENEFITS  UNDER  THIS
 ARTICLE, SUCH PERSON SHALL BE ENTITLED TO RECEIVE FAMILY LEAVE BENEFITS,
 AS  HEREIN  PROVIDED  FOR EACH WEEK OF SUCH FAMILY LEAVE THEREAFTER. The
 weekly benefit of such [disabled] employee shall be computed in the same
 manner  as  provided  in  subdivision two of section two hundred four OF
 THIS ARTICLE, and the benefits he OR SHE is entitled to receive shall be
 subject to the limitations as to maximum and minimum amounts  and  dura-
 tion  and  other  conditions  and limitations prescribed in sections two
 hundred four, two hundred five and two hundred six OF THIS ARTICLE.
   3. Payment of benefits. The benefits payable under this section  shall
 be  subject  to  the  provisions and limitations generally applicable to
 disability AND FAMILY LEAVE benefits payable  under  this  article,  and
 shall  be  paid by the chairman out of any assets in the fund created by
 section two hundred fourteen.  The  chairman  may  require  an  employee
 claiming  benefits  under  this  section to file proofs of disability OR
 NEED FOR FAMILY LEAVE and of his OR HER employment and wages, and  other
 proofs  reasonably  necessary  for  the  chairman  to  make in the first
 instance the determination of eligibility and benefit rights under  this
 section;  and  may  require  his  OR  HER  employer or his OR HER former
 employer or employers to file reports of employment and wages and  other
 information  reasonably  necessary  for such determination. The chairman
 may make administrative regulations for such determinations. The  chair-
 man may also by regulation establish reasonable procedures for determin-
 ing pro rata benefits payable with respect to disability OR FAMILY LEAVE
 periods of less than one week. Any employee claiming benefits under this
 section  whose  claim  is  rejected in whole or in part by the chairman,
 shall be entitled to request a review by the board and  shall  have  all
 the rights with respect to contested claims provided in this article.
   4.  Qualification  notwithstanding  casual  non-covered employment. An
 employment of not more than four weeks with a  non-covered  employer  or
 employers  occurring  within  such  twenty-six  weeks  period  shall not
 disqualify an employee from benefits provided such employee  was  other-
 wise  eligible  to  receive benefits under this section at the time such
 employment for a non-covered employer commenced.
   [5. The foregoing provisions of this section shall not apply to family
 leave benefits, as family leave benefits are not available to  employees
 that  are  not  employed at the time family leave is requested by filing
 the notice and medical certification required by the chair.]
   § 8.  Paragraph (b) of subdivision 4 of section 212  of  the  workers'
 compensation law, as added by section 13 of part SS of chapter 54 of the
 laws of 2016, is amended to read as follows:
   (b)  Notwithstanding  the  definition  of  "employer"  in  section two
 hundred one of this article, a sole  proprietor,  member  of  a  limited
 liability  company  or  limited liability partnership, or other self-em-
 ployed person may become  a  covered  employer  under  this  article  by
 complying  with  the  provisions  of  subdivision one of this section. A
 SELF-EMPLOYED PERSON WHO BECOMES A COVERED EMPLOYER UNDER  THIS  SECTION
 SHALL  BECOME ELIGIBLE FOR DISABILITY AND FAMILY LEAVE BENEFITS NO LATER
 THAN FOUR WEEKS AFTER THE PURCHASE OF A POLICY OF INSURANCE  UNDER  THIS
 ARTICLE.
   §  9.   Severability.  If  any  clause,  sentence, paragraph, subdivi-
 sion or section of this act shall be adjudged by any court of  competent
 jurisdiction  to be invalid, such  judgment shall not affect, impair, or
 invalidate the remainder thereof, but shall be confined in its operation
 to the clause, sentence, paragraph,   subdivision,   section   or   part
 thereof   directly involved  in  the  controversy  in  which  such judg-
 A. 9479                             6
 
 ment shall have been rendered. It is hereby declared to be the intent of
 the legislature that this act would  have  been  enacted  even  if  such
 invalid provisions had not been included herein.
   §  10.   This act shall take effect on the sixtieth day after it shall
 have become a law.   Effective immediately, the   addition,    amendment
 and/or repeal of any rule or regulation necessary for the implementation
 of  this  act  on its effective   date   are   authorized to be made and
 completed on or before such effective date.