S T A T E O F N E W Y O R K
________________________________________________________________________
8735--A
I N S E N A T E
April 5, 2022
___________
Introduced by Sens. RAMOS, ADDABBO -- read twice and ordered printed,
and when printed to be committed to the Committee on Labor -- commit-
tee discharged, bill amended, ordered reprinted as amended and recom-
mitted 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:
Section 1. Subdivision 9 of section 201 of the workers' compensation
law, as amended by chapter 675 of the laws of 1977, paragraph B as
amended by chapter 352 of the laws of 1981, is amended to read as
follows:
9. [A.] (A) "Disability" during employment means the inability of an
employee, as a result of injury or sickness not arising out of and in
the course of an employment, to perform the regular duties of his OR HER
employment or the duties of any other employment which his OR HER
employer may offer him OR HER at his OR HER regular wages and which his
OR HER injury or sickness does not prevent him OR HER from performing.
"Disability" during unemployment means the inability of an employee, as
a result of injury or sickness not arising out of and in the course of
an employment, to perform the duties of any employment for which he OR
SHE is reasonably qualified by training and experience.
[B.] (B) "Disability" also includes disability caused by or in
connection with a pregnancy.
(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. Subdivision 20 of section 201 of the workers' compensation law,
as amended by chapter 550 of the laws of 2021, is amended to read as
follows:
20. "Family member" means a child, parent, grandparent, grandchild,
sibling, spouse, or domestic partner as defined in this section, OR ANY
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14521-03-2
S. 8735--A 2
OTHER INDIVIDUAL RELATED BY BLOOD TO THE EMPLOYEE OR WHOSE CLOSE ASSOCI-
ATION WITH THE EMPLOYEE IS THE EQUIVALENT OF A FAMILY RELATIONSHIP.
§ 3. 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
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 AND FAMILY 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
employment.
S. 8735--A 3
§ 4. 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.
§ 5. 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
the employee would have been entitled had the employee not taken the
leave.
§ 6. 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 OR 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.
§ 7. 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:
2. (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
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 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], TWO THOUSAND TWENTY-ONE shall
not exceed twelve weeks 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 New York state average week-
S. 8735--A 4
ly wage in effect, AND (V) ON OR AFTER JANUARY FIRST, TWO THOUSAND TWEN-
TY-FOUR, SHALL NOT EXCEED TWELVE WEEKS DURING ANY FIFTY-TWO WEEK CALEN-
DAR PERIOD AND SHALL BE NINETY PERCENT OF THE PORTION OF THE EMPLOYEE'S
AVERAGE WEEKLY WAGE THAT IS EQUAL TO OR LESS THAN FIFTY PERCENT OF THE
NEW YORK STATE AVERAGE WEEKLY WAGE IN EFFECT AND SIXTY-SEVEN PERCENT OF
THE PORTION OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE THAT IS MORE THAN
FIFTY PERCENT OF THE NEW YORK STATE AVERAGE WEEKLY WAGE IN EFFECT BUT
SHALL NOT EXCEED SIXTY-SEVEN PERCENT OF THE NEW YORK STATE AVERAGE WEEK-
LY WAGE IN EFFECT. 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), AND (V) of this para-
graph 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 over-
all 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.
(b) THE WEEKLY BENEFIT WHICH THE DISABLED EMPLOYEE IS ENTITLED TO
RECEIVE FOR DISABILITY COMMENCING ON OR AFTER JANUARY FIRST, TWO THOU-
SAND TWENTY-FOUR SHALL BE NINETY PERCENT OF THE PORTION OF THE EMPLOY-
EE'S AVERAGE WEEKLY WAGE THAT IS EQUAL TO OR LESS THAN FIFTY PERCENT OF
THE NEW YORK STATE AVERAGE WEEKLY WAGE IN EFFECT AND SIXTY-SEVEN PERCENT
OF THE PORTION OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE THAT IS MORE THAN
FIFTY PERCENT OF THE NEW YORK STATE AVERAGE WEEKLY WAGE IN EFFECT BUT
SHALL NOT EXCEED SIXTY-SEVEN PERCENT OF THE NEW YORK STATE AVERAGE WEEK-
LY WAGE IN EFFECT; EXCEPT THAT IF THE EMPLOYEE'S AVERAGE 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 weekly benefit which
the disabled employee is entitled to receive for disability 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 aver-
S. 8735--A 5
age weekly wage. The weekly benefit which the disabled employee is enti-
tled to receive for disability commencing on or after July first, nine-
teen hundred eighty-three and prior to July first, nineteen hundred
eighty-four shall be one-half of the employee's average weekly wage, but
in no case shall such benefit exceed one hundred thirty-five dollars nor
be less than twenty dollars; except that if the employee's average week-
ly 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 average 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 weekly wage. For any
period of disability less than a full week, the benefits payable shall
be calculated by dividing the weekly benefit by the number of the
employee's normal work days per week and multiplying the 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 bene-
fits in the employment of more than one covered employer shall, within
the maximum and minimum herein provided, be (I) one-half of the total of
the employee's average weekly wages received from all such covered
employers, OR (II) FOR DISABILITY COMMENCING ON OR AFTER JANUARY FIRST,
TWO THOUSAND TWENTY-FOUR, NINETY PERCENT OF THE PORTION OF THE EMPLOY-
EE'S AVERAGE WEEKLY WAGE RECEIVED FROM ALL SUCH COVERED EMPLOYERS THAT
IS EQUAL TO OR LESS THAN FIFTY PERCENT OF THE NEW YORK STATE AVERAGE
WEEKLY WAGE IN EFFECT AND SIXTY-SEVEN PERCENT OF THE PORTION OF THE
EMPLOYEE'S AVERAGE WEEKLY WAGE RECEIVED FROM ALL SUCH COVERED EMPLOYERS
THAT IS MORE THAN FIFTY PERCENT OF THE NEW YORK STATE AVERAGE WEEKLY
WAGE IN EFFECT, and shall be allocated in the proportion of their
respective average weekly wage payments.
§ 8. 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-FOUR, 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 OR SHE would have
S. 8735--A 6
received unemployment insurance benefits if he OR SHE were not so disa-
bled OR DID NOT HAVE SUCH NEED FOR FAMILY LEAVE. 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 duration and other
conditions 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-FOUR. If such employee becomes disabled and contin-
ues to be disabled for at least eight consecutive days during such twen-
ty-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, beginning
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 OR
PROFIT AND IS NOT THEN OTHERWISE ELIGIBLE FOR BENEFITS UNDER THIS ARTI-
CLE, SUCH PERSON SHALL BE ENTITLED TO RECEIVE FAMILY LEAVE BENEFITS, AS
HEREIN PROVIDED FOR EACH WEEK OF SUCH FAMILY LEAVE THEREAFTER. The week-
ly 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] CHAIR out of any assets in the fund
created by section two hundred fourteen OF THIS ARTICLE. The [chairman]
CHAIR 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] CHAIR 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 neces-
sary for such determination. The [chairman] CHAIR may make administra-
tive regulations for such determinations. The [chairman] CHAIR may also
by regulation establish reasonable procedures for determining pro rata
benefits payable with respect to disability OR FAMILY LEAVE periods of
S. 8735--A 7
less than one week. Any employee claiming benefits under this section
whose claim is rejected in whole or in part by the [chairman] CHAIR,
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.]
§ 9. 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 FOR A
PERIOD OF AT LEAST ONE YEAR by complying with the provisions of subdivi-
sion 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.
§ 10. Subdivision 2 of section 2 of the workers' compensation law, as
amended by chapter 717 of the laws of 2021, is amended to read as
follows:
2. (A) "Department" means the department of labor of the state of New
York;
(B) "Chairman" OR "CHAIR" means the [chairman] CHAIR of the workers'
compensation board of the state of New York;
(C) "Commissioner" means the industrial commissioner of the state of
New York;
(D) "Board" means the workers' compensation board of the state of New
York;
(E) "Commissioners" means the commissioners of the state insurance
fund of the department of labor of the state of New York.
§ 11. Subdivision 2 of section 201 of the workers' compensation law,
as amended by chapter 717 of the laws of 2021, is amended to read as
follows:
2. "Chairman" OR "CHAIR" means the [chairman] CHAIR of the workers'
compensation board of the state of New York.
§ 12. Subdivision 6 of section 302 of the workers' compensation law,
as amended by chapter 717 of the laws of 2021, is amended to read as
follows:
6. "Chairman" shall mean the [chairman] CHAIR of the workers' compen-
sation board.
§ 13. Severability. If any clause, sentence, paragraph, subdivi-
sion, section or part 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 judgment shall have been rendered. It is hereby declared to be the
S. 8735--A 8
intent of the legislature that this act would have been enacted even if
such invalid provisions had not been included herein.
§ 14. This act shall take effect on the sixtieth day after it shall
have become a law; provided, however, that the amendments to subdivision
20 of section 201 of the workers' compensation law made by section two
of this act shall take effect on the same date and in the same manner as
section 2 of chapter 550 of the laws of 2021 takes effect. 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 effec-
tive date.
