S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6108--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               April 3, 2023
                                ___________
 
 Introduced by M. of A. ARDILA -- read once and referred to the Committee
   on  Labor  -- recommitted to the Committee on Labor in accordance with
   Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
   reprinted as amended and recommitted to said committee
 
 AN ACT to amend the workers' compensation law, in relation to paid fami-
   ly medical leave
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 120 of the workers' compensation law, as amended by
 chapter  61  of  the  laws  of  1989,  the section heading as amended by
 section 31 of part SS of chapter 54 of the laws  of  2016,  the  opening
 paragraph  as  amended by chapter 105 of the laws of 2019, is amended to
 read as follows:
   § 120. Discrimination against employees. 1. It shall be  unlawful  for
 any employer or [his or her] THEIR duly authorized agent to discharge or
 fail  to reinstate pursuant to section two hundred three-b of this chap-
 ter, or in any other manner discriminate against an employee as to  [his
 or  her] THEIR employment because such employee has claimed or attempted
 to claim compensation from such employer, requested  a  claim  form  for
 injuries  received  in the course of employment, or claimed or attempted
 to claim any benefits provided under this chapter or because [he or she]
 SUCH EMPLOYEE has testified or is about to testify in a proceeding under
 this chapter and no other valid reason is shown to exist for such action
 by the employer.
   2. Any complaint alleging such  an  unlawful  discriminatory  practice
 must  be filed within two years of the commission of such practice. Upon
 finding that an employer has violated this section, the board shall make
 an order that any employee so discriminated against shall be restored to
 employment or otherwise restored to the position or  privileges  [he  or
 she]  THEY  would  have  had  but  for the discrimination, IF SUCH REIN-
 STATEMENT IS REQUESTED BY SUCH EMPLOYEE, and  shall  be  compensated  by
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03171-07-4
              

 A. 6108--A                          2
 
 [his  or her] THEIR employer for any loss of compensation arising out of
 such discrimination together with such fees or allowances  for  services
 rendered  by  an  attorney  or  licensed  representative as fixed by the
 board.  Any  employer  who  violates  this  section shall be liable to a
 penalty of not less than one hundred dollars or more than  five  hundred
 dollars,  as may be determined by the board. All such penalties shall be
 paid into the state treasury. All penalties, compensation  and  fees  or
 allowances  shall be paid solely by the employer. The employer alone and
 not [his or her] THEIR carrier shall be liable for  such  penalties  and
 payments.    Any provision in an insurance policy undertaking to relieve
 the employer from liability for such penalties  and  payments  shall  be
 void.
   3.  An  employer  found  to  be  in  violation of this section and the
 aggrieved employee must report to the board as  to  the  manner  of  the
 employer's  compliance within thirty days of receipt of a final determi-
 nation. In case of failure to report on compliance, or failure to comply
 with an order or penalty of the board within thirty days after the order
 or notice of penalty is served, except where timely application  to  the
 board for a modification, rescission, or review of such order or penalty
 has  been filed under section twenty-three of this chapter, the chair in
 any such case or, on the chair's consent,  any  party  may  enforce  the
 order or penalty in a like manner as an award of compensation.
   4. PURSUANT WITH THE PROVISIONS OF SECTION TWO HUNDRED THREE-B OF THIS
 CHAPTER,  AN  EMPLOYEE SHALL NOT BE REQUIRED TO REQUEST REINSTATEMENT TO
 SUCH EMPLOYEE'S FORMER POSITION OF EMPLOYMENT BEFORE FILING A  COMPLAINT
 OF UNLAWFUL DISCRIMINATORY PRACTICE AS DESCRIBED IN THIS SECTION.
   5.  AS  AN  ALTERNATIVE TO FILING A COMPLAINT WITH THE BOARD AS HEREIN
 PROVIDED, AN EMPLOYEE MAY BRING AN ACTION AGAINST ANY COVERED  EMPLOYER,
 AS  DESCRIBED  IN  SECTION TWO HUNDRED TWO OF THIS CHAPTER, WHO VIOLATES
 THE PROVISIONS OF THIS SECTION OR SECTION TWO HUNDRED  THREE-B  OF  THIS
 CHAPTER,  BY  OR  ON  BEHALF  OF AN EMPLOYEE, AS THAT TERM IS DEFINED IN
 SUBDIVISION FIVE OF SECTION TWO HUNDRED ONE OF  THIS  CHAPTER,  WHO  HAS
 CLAIMED  OR  ATTEMPTED  TO CLAIM PAID FAMILY LEAVE BENEFITS. A PLAINTIFF
 WHO PREVAILS ON A CLAIM ALLEGING A  VIOLATION  OF  THIS  SECTION  OR  OF
 SECTION  TWO HUNDRED THREE-B OF THIS CHAPTER WITH REGARDS TO PAID FAMILY
 LEAVE SHALL BE ENTITLED TO COMPENSATORY, ACTUAL, AND  PUNITIVE  DAMAGES,
 INJUNCTIVE  RELIEF, REASONABLE ATTORNEYS' FEES AND COSTS, AND OTHER SUCH
 REMEDIES AS A COURT MAY DEEM APPROPRIATE.
   6. AN EMPLOYEE WITH A PENDING CLAIM BEFORE THE BOARD WHERE  A  FINDING
 HAS  NOT  YET  BEEN  ISSUED AS OF THE EFFECTIVE DATE OF THIS SUBDIVISION
 SHALL BE PERMITTED TO WITHDRAW SUCH CLAIM AND FILE THE ACTION  DESCRIBED
 IN SUBDIVISION FIVE OF THIS SECTION AGAINST A COVERED EMPLOYER.
   §  2.  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 family leave. Any eligible employee
 of a covered employer who takes leave under this article shall be  enti-
 tled,  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 bene-
 fits, pay and other terms and conditions of employment, PROVIDED, HOWEV-
 ER, THAT SUCH ELIGIBLE EMPLOYEE SHALL NOT BE REQUIRED TO  REQUEST  REIN-
 STATEMENT  TO  ANY  SUCH  POSITION. The taking of family leave 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
 A. 6108--A                          3
 
 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. FURTHERMORE,  NOTHING  IN  THIS  SECTION  SHALL  BE
 CONSTRUED  TO  REQUIRE  AN  EMPLOYEE  TO  REQUEST REINSTATEMENT TO THEIR
 FORMER POSITION OF EMPLOYMENT, OR TO A COMPARABLE POSITION WITH COMPARA-
 BLE EMPLOYMENT BENEFITS, PAY, AND OTHER TERMS AND CONDITIONS OF  EMPLOY-
 MENT,  BEFORE INITIATING A COMPLAINT AGAINST A COVERED EMPLOYER PURSUANT
 TO THE PROVISIONS OF SECTION ONE HUNDRED TWENTY OF THIS CHAPTER.
   § 3. This act shall take effect immediately and  shall  apply  to  all
 complaints  and actions filed on or after such effective date; provided,
 however, that the provisions of subdivision 6  of  section  120  of  the
 workers'  compensation  law added by section one of this act shall apply
 to claims pending before the workers' compensation board where a finding
 has not yet been issued as of the effective date of this act.