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

                                  5791

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              June 5, 2009
                               ___________

Introduced  by  Sens.  SAVINO,  KLEIN, MORAHAN, BRESLIN, ADAMS, ADDABBO,
  DIAZ, DUANE, ESPADA, HASSELL-THOMPSON, HUNTLEY,  C. JOHNSON,  KRUEGER,
  MONSERRATE,  MONTGOMERY,  ONORATO, OPPENHEIMER, PARKER, PERKINS, SAMP-
  SON,   SCHNEIDERMAN,   SERRANO,   SQUADRON,   STACHOWSKI,    STAVISKY,
  STEWART-COUSINS,  THOMPSON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the workers' compensation law and the insurance law,  in
  relation  to  providing  benefits for injury or sickness, pregnancy or
  family leave

  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 two new paragraphs C and D to read as follows:
  C. "DISABILITY" ALSO INCLUDES FAMILY CARE, AS DEFINED  IN  SUBDIVISION
FIFTEEN OF THIS SECTION.
  D.  UNLESS OTHERWISE SET FORTH IN THIS ARTICLE, ALL PROVISIONS OF THIS
ARTICLE APPLICABLE TO "DISABILITY" SHALL APPLY TO (I) DISABILITY ARISING
FROM INJURY OR SICKNESS; (II) DISABILITY CAUSED BY OR IN CONNECTION WITH
PREGNANCY; AND (III) FOR FAMILY CARE.
  S 2. Subdivision 14 of section 201 of the workers'  compensation  law,
as added by chapter 600 of the laws of 1949 and as renumbered by chapter
438 of the laws of 1964, is amended to read as follows:
  14.  "A  day  of  disability"  means any day on which the employee was
prevented from performing work because of disability, INCLUDING ANY  DAY
ON  WHICH  THE EMPLOYEE TOOK OFF FOR FAMILY CARE, and for which [he] THE
EMPLOYEE has not received his OR HER regular remuneration.
  S 3. Section 201 of the workers' compensation law is amended by adding
ten new subdivisions 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24  to  read
as follows:
  15. "FAMILY CARE" SHALL MEAN ANY LEAVE TAKEN BY AN EMPLOYEE FROM WORK:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11260-04-9

              

S. 5791                             2

  A.  TO PARTICIPATE IN PROVIDING CARE, INCLUDING PHYSICAL OR PSYCHOLOG-
ICAL CARE, FOR A FAMILY MEMBER OF THE EMPLOYEE MADE NECESSARY BY A SERI-
OUS HEALTH CONDITION OF THE FAMILY MEMBER; OR
  B.  TO BOND WITH HIS OR HER 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.
  16. "CHILD" MEANS A BIOLOGICAL, ADOPTED, OR FOSTER CHILD, A STEPCHILD,
A LEGAL WARD, OR A CHILD OF A PERSON STANDING IN LOCO PARENTIS, WHO IS:
  A. UNDER EIGHTEEN YEARS OF AGE; OR
  B. EIGHTEEN YEARS OF AGE OR OLDER AND INCAPABLE OF  SELF-CARE  BECAUSE
OF A MENTAL OR PHYSICAL DISABILITY.
  17.  "DOMESTIC  PARTNER"  HAS THE MEANING SET FORTH IN SECTION FOUR OF
THIS CHAPTER.
  18. "SERIOUS HEALTH CONDITION" MEANS AN ILLNESS,  INJURY,  IMPAIRMENT,
OR PHYSICAL OR MENTAL CONDITION THAT:
  A.  REQUIRES  INPATIENT  CARE  IN  A  HOSPITAL, HOSPICE OR RESIDENTIAL
HEALTH CARE FACILITY; OR
  B. REQUIRES CONTINUING TREATMENT BY A HEALTH CARE PROVIDER.
  19. "PARENT" MEANS THE BIOLOGICAL, ADOPTIVE, OR FOSTER  PARENT  OF  AN
EMPLOYEE  OR  INDIVIDUAL  WHO STOOD IN LOCO PARENTIS TO AN EMPLOYEE WHEN
THE EMPLOYEE WAS A SON OR DAUGHTER.
  20. "FAMILY MEMBER" MEANS A CHILD, SPOUSE, DOMESTIC  PARTNER,  PARENT,
GRANDCHILD,  GRANDPARENT,  MOTHER-IN-LAW, FATHER-IN-LAW OR MOTHER AND/OR
FATHER OF DOMESTIC PARTNER.
  21. PERSONS WHO ARE "IN LOCO PARENTIS" INCLUDE THOSE  WITH  DAY-TO-DAY
RESPONSIBILITIES  TO CARE FOR AND FINANCIALLY SUPPORT A CHILD OR, IN THE
CASE OF AN EMPLOYEE, WHO HAD SUCH RESPONSIBILITY FOR THE  EMPLOYEE  WHEN
THE  EMPLOYEE  WAS  A  CHILD.  A BIOLOGICAL OR LEGAL RELATIONSHIP IS NOT
NECESSARY.
  22. "GRANDCHILD" MEANS THE CHILD OF A CHILD.
  23. "HEALTH CARE PROVIDER" MEANS ANY PROVIDER TREATING  AN  EMPLOYEE'S
INJURY  OR  SICKNESS,  OR  A  FAMILY  MEMBER'S SERIOUS HEALTH CONDITION,
INCLUDING A PHYSICIAN, PODIATRIST, CHIROPRACTOR, DENTIST,  PSYCHOLOGIST,
CERTIFIED  NURSE  MIDWIFE, OR IN THE CASE OF A FAMILY MEMBER 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 HEALTH
CONDITION IN COMPLIANCE WITH REGULATIONS OF THE CHAIR.
  24. "FAMILY CARE COST" SHALL MEAN:
  A. PRIOR TO JULY FIRST, TWO  THOUSAND  ELEVEN,  FORTY-FIVE  CENTS  PER
WEEK; AND
  B.  DURING  EVERY SUBSEQUENT YEAR COMMENCING ON JULY FIRST SUCH AMOUNT
AS SHALL BE SET BY REGULATION OF THE SUPERINTENDENT OF INSURANCE FOLLOW-
ING CONSULTATION WITH THE FAMILY CARE ADVISORY COUNCIL BY APRIL FIRST OF
THE SAME YEAR BASED ON HIS OR HER ACTUARIALLY SOUND  ESTIMATION  OF  THE
COST  PER  EMPLOYEE  OF  PROVIDING FAMILY CARE BENEFITS, BUT IN NO EVENT
MORE THAN ONE HUNDRED FIFTEEN PERCENT OF HIS OR HER  ESTIMATION  OF  THE
COST  PER  EMPLOYEE  OF PROVIDING FAMILY CARE BENEFITS THROUGH THE STATE
INSURANCE FUND.
  S 3-a. The workers' compensation  law  is  amended  by  adding  a  new
section 203-a to read as follows:
  S  203-A. RETALIATORY ACTION PROHIBITED. 1.  THE PROVISIONS OF SECTION
ONE HUNDRED TWENTY OF THIS CHAPTER AND SECTION TWO HUNDRED FORTY-ONE  OF
THIS ARTICLE SHALL BE APPLICABLE TO FAMILY CARE LEAVE AS FULLY AS IF SET
FORTH IN THIS SECTION.

S. 5791                             3

  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;  EXCEPT  THAT THE INSTITUTION OF AN
ACTION IN ACCORDANCE WITH THIS SECTION SHALL BE DEEMED A WAIVER  OF  THE
RIGHTS  AND  REMEDIES  AVAILABLE  UNDER ANY OTHER CONTRACT OR COLLECTIVE
BARGAINING AGREEMENT.
  S 3-b. The workers' compensation  law  is  amended  by  adding  a  new
section 203-b to read as follows:
  S 203-B. FAMILY CARE LEAVE. ANY ELIGIBLE EMPLOYEE OF A COVERED EMPLOY-
ER  WHO  HAS  IN  EMPLOYMENT  AFTER  JANUARY  FIRST,  TWO  THOUSAND  TEN
TWENTY-FIVE OR MORE EMPLOYEES ON EACH OF AT LEAST  THIRTY  DAYS  IN  ANY
CALENDAR  YEAR  WHO TAKES LEAVE UNDER THIS SECTION 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 LEAVE
FOR THE PURPOSE OF FAMILY CARE 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.   A VIOLATION OF THIS SECTION SHALL BE A VIOLATION OF SECTION ONE
HUNDRED TWENTY OF THIS CHAPTER AND ALL REMEDIES AND PENALTIES  AVAILABLE
UNDER  SECTION ONE HUNDRED TWENTY OF THIS CHAPTER SHALL BE AVAILABLE FOR
VIOLATIONS OF THIS SECTION AS FULLY AS IF SET FORTH IN THIS SECTION.
  S 3-c. The section heading and the  first  undesignated  paragraph  of
section  120  of the workers' compensation law, as amended by chapter 61
of the laws of 1989, are amended to read as follows:
  Discrimination against employees [who bring proceedings]. It shall  be
unlawful  for  any  employer  or  his  or  her  duly authorized agent to
discharge or in any other manner discriminate against an employee as  to
his  or her employment because such employee has claimed or attempted to
claim compensation from such employer, OR CLAIMED OR ATTEMPTED TO  CLAIM
ANY  BENEFITS  PROVIDED  UNDER  THIS  CHAPTER,  or because he or she 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.
  S 4. Subdivision 1 of section 204 of the workers' compensation law, as
added  by chapter 600 of the laws of 1949, is amended and a new subdivi-
sion 3 is added to read as follows:
  1. Disability benefits shall be payable to an  eligible  employee  for
disabilities  commencing  after  June thirtieth, nineteen hundred fifty,
beginning with the eighth consecutive day of disability  and  thereafter
during  the  continuance of disability, subject to the limitations as to
maximum and minimum amounts and duration and other conditions and  limi-
tations in this section and in sections two hundred five and two hundred
six  OF  THIS  ARTICLE.   Successive periods of disability caused by the
same or related injury or sickness OR REASON FOR FAMILY  CARE  shall  be
deemed  a  single  period  of  disability only if separated by less than
three months.
  3. THE WEEKLY BENEFIT WHICH  THE  DISABLED  EMPLOYEE  IS  ENTITLED  TO
RECEIVE  FOR  DISABILITY COMMENCING ON OR AFTER JANUARY FIRST, TWO THOU-
SAND TEN SHALL BE FIFTY PERCENT OF THE EMPLOYEE'S AVERAGE  WEEKLY  WAGE,
BUT  IN  NO  CASE  SHALL  SUCH BENEFIT EXCEED THIRTY-FIVE PERCENT OF THE
STATEWIDE AVERAGE WEEKLY WAGE AS DETERMINED BY THE STATE  DEPARTMENT  OF
LABOR  PURSUANT  TO  SUBDIVISION SIXTEEN OF SECTION TWO OF THIS CHAPTER.

S. 5791                             4

THE WEEKLY BENEFIT WHICH THE DISABLED EMPLOYEE IS  ENTITLED  TO  RECEIVE
FOR  DISABILITY  COMMENCING ON OR AFTER APRIL FIRST, TWO THOUSAND ELEVEN
SHALL BE FIFTY PERCENT OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE, BUT IN  NO
CASE  SHALL  SUCH  BENEFIT EXCEED FORTY PERCENT OF THE STATEWIDE AVERAGE
WEEKLY WAGE AS DETERMINED BY THE STATE DEPARTMENT OF LABOR  PURSUANT  TO
SUBDIVISION  SIXTEEN  OF SECTION TWO OF THIS CHAPTER. THE WEEKLY BENEFIT
WHICH THE DISABLED  EMPLOYEE  IS  ENTITLED  TO  RECEIVE  FOR  DISABILITY
COMMENCING  ON  OR AFTER APRIL FIRST, TWO THOUSAND TWELVE SHALL BE FIFTY
PERCENT OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE BUT IN NO CASE SHALL  SUCH
BENEFIT  EXCEED  FORTY-FIVE PERCENT OF THE STATEWIDE AVERAGE WEEKLY WAGE
AS DETERMINED BY THE STATE DEPARTMENT OF LABOR PURSUANT  TO  SUBDIVISION
SIXTEEN  OF  SECTION  TWO  OF THIS CHAPTER. THE WEEKLY BENEFIT WHICH THE
DISABLED EMPLOYEE IS ENTITLED TO RECEIVE FOR DISABILITY COMMENCING ON OR
AFTER APRIL FIRST, TWO THOUSAND THIRTEEN AND SUBSEQUENTLY SHALL BE FIFTY
PERCENT OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE BUT IN NO CASE SHALL  SUCH
BENEFIT  EXCEED  FIFTY  PERCENT  OF THE STATEWIDE AVERAGE WEEKLY WAGE AS
DETERMINED BY THE STATE DEPARTMENT  OF  LABOR  PURSUANT  TO  SUBDIVISION
SIXTEEN OF SECTION TWO OF THIS CHAPTER.
  S  5.  Subdivisions 1, 2, 3, 4, 7 and 8 of section 205 of the workers'
compensation law, subdivision 1 as amended by chapter 651 of the laws of
1958, subdivision 2 as amended by chapter 270 of the laws  of  1990  and
subdivisions  3,  4, 7 and 8 as added by chapter 600 of the laws of 1949
and as renumbered by chapter 352 of the laws of 1981, are amended and  a
new subdivision 9 is added to read as follows:
  1.  (A)  For DISABILITY RESULTING FROM INJURY OR SICKNESS OR PREGNANCY
OF AN EMPLOYEE, FOR more  than  twenty-six  weeks  during  a  period  of
fifty-two  consecutive  calendar weeks or during any one period of disa-
bility; OR
  (B) FOR FAMILY CARE, FOR MORE THAN TWELVE WEEKS  DURING  A  PERIOD  OF
FIFTY-TWO  CONSECUTIVE CALENDAR WEEKS OR DURING ANY ONE PERIOD OF FAMILY
CARE;
  2. for any period of disability RESULTING FROM THE INJURY OR  SICKNESS
OR  PREGNANCY  OF  AN EMPLOYEE during which an employee is not under the
care of a duly licensed physician or with respect to disability  result-
ing from a condition of the foot which may lawfully be treated by a duly
registered  and  licensed  podiatrist  of  the state of New York or with
respect to a disability resulting from a condition which may lawfully be
treated by a duly registered and licensed chiropractor of the  state  of
New  York  or  with  respect  to a disability resulting from a condition
which may lawfully be treated by a duly licensed dentist of the state of
New York or with respect to a  disability  resulting  from  a  condition
which may lawfully be treated by a duly registered and licensed psychol-
ogist of the state of New York or with respect to a disability resulting
from a condition which may lawfully be treated by a duly certified nurse
midwife,  for  any period of such disability during which an employee is
neither under the care of a physician nor a podiatrist, nor a chiroprac-
tor, nor a dentist, nor a psychologist, nor a certified  nurse  midwife;
and for any period of disability during which an employee who adheres to
the  faith or teachings of any church or denomination and who in accord-
ance with its creed, tenets or principles depends for healing upon pray-
er through spiritual means alone in the practice  of  religion,  is  not
under the care of a practitioner duly accredited by the church or denom-
ination,  and  provided such employee shall submit to all physical exam-
inations as required by this chapter[.];
  3. for any disability RESULTING FROM INJURY OR SICKNESS OF AN EMPLOYEE
occasioned by the wilful intention of the employee to bring about injury

S. 5791                             5

to or the sickness of himself or another, or resulting from  any  injury
or  sickness sustained in the perpetration by the employee of an illegal
act;
  4.  for any day of disability during which the employee performed work
for remuneration or profit; BUT NOT INCLUDING ANY REMUNERATION  RECEIVED
FOR CARING FOR A FOSTER OR ADOPTED CHILD OR OTHER INDIVIDUAL RESIDING IN
THE EMPLOYEE'S PLACE OF RESIDENCE;
  7.  for  any disability due to any act of war, declared or undeclared,
if such act shall occur after June thirtieth,  nineteen  hundred  fifty,
EXCEPT  THAT  NOTHING  IN  THIS  SUBDIVISION  SHALL BAR AN EMPLOYEE FROM
RECEIVING BENEFITS UNDER THIS ARTICLE FOR CARE OF A FAMILY MEMBER  DISA-
BLED DUE TO AN ACT OF WAR;
  8. for any disability RESULTING FROM AN INJURY OR SICKNESS TO OR PREG-
NANCY OF THE EMPLOYEE commencing before the employee becomes eligible to
benefits  hereunder [or commencing prior to July first, nineteen hundred
fifty, but this shall not preclude benefits for  recurrence  after  July
first,  nineteen  hundred fifty, of a disability commencing prior there-
to.];
  9. FOR ANY DAY OF ABSENCE FROM WORK REQUIRED PURSUANT TO ANY DISCIPLI-
NARY PROCESS; OR, IN REGARD TO FAMILY CARE BENEFITS, ANY DAY OF  ABSENCE
FROM  WORK  RESULTING  FROM  INJURY  OR  SICKNESS TO OR PREGNANCY OF THE
EMPLOYEE, INCLUDING ANY LEAVE TAKEN UNDER SECTION SEVENTY-ONE OR  SEVEN-
TY-THREE OF THE CIVIL SERVICE LAW.
  S  6. The workers' compensation law is amended by adding a new section
205-a to read as follows:
  S 205-A. RELATIONSHIP BETWEEN DISABILITY BENEFITS FOR FAMILY CARE  AND
FOR  THE EMPLOYEE'S OWN INJURY OR SICKNESS OR PREGNANCY.  THE RECEIPT OF
BENEFITS FOR DISABILITY RESULTING FROM INJURY OR SICKNESS TO THE EMPLOY-
EE, OR PREGNANCY OF THE EMPLOYEE, SHALL NOT COUNT TOWARD ANY TIME  LIMI-
TATION UNDER SUBDIVISION ONE OF SECTION TWO HUNDRED FIVE OF THIS ARTICLE
ON  THE RECEIPT OF BENEFITS FOR FAMILY CARE, AND THE RECEIPT OF BENEFITS
FOR FAMILY CARE SHALL NOT COUNT TOWARD ANY TIME LIMITATION UNDER  SUBDI-
VISION ONE OF SECTION TWO HUNDRED FIVE OF THIS ARTICLE ON THE RECEIPT OF
BENEFITS  FOR  DISABILITY RESULTING FROM INJURY OR SICKNESS OR PREGNANCY
TO THE EMPLOYEE, EXCEPT THAT AN EMPLOYEE MAY RECEIVE DISABILITY BENEFITS
ON ONLY ONE CLAIM AT ANY TIME.
  S 7. Subdivision 3 of section 209 of the workers' compensation law, as
amended by chapter 415 of the laws  of  1983,  is  amended  to  read  as
follows:
  3.  The  contribution  of each such employee to the cost of disability
benefits provided by this article shall be one-half of one per centum of
the employee's wages paid to him  on  and  after  July  first,  nineteen
hundred fifty, but not in excess of sixty cents per week FOR THE COST OF
DISABILITY  BENEFITS  FOR  INJURY  OR  SICKNESS  TO, OR PREGNANCY OF THE
EMPLOYEE  PLUS  THE  FAMILY  CARE  COST,  AS  DEFINED   IN   SUBDIVISION
TWENTY-FOUR OF SECTION TWO HUNDRED ONE OF THIS ARTICLE.
  S  7-a.  Section  211  of  the workers' compensation law is amended by
adding two new subdivisions 7 and 8 to read as follows:
  7. SUCH FAMILY CARE BENEFITS AS ARE PROVIDED FOR IN THIS ARTICLE SHALL
BE IN ADDITION TO, AND SHALL NOT AMEND, REPEAL OR REPLACE, THE TERMS  OF
ANY  AGREEMENT  THAT IS COLLECTIVELY  NEGOTIATED BETWEEN AN EMPLOYER AND
AN EMPLOYEE ORGANIZATION, INCLUDING AGREEMENT  OR  INTEREST  ARBITRATION
AWARDS MADE PURSUANT TO ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW.
  8.  NOTHING  IN THIS ARTICLE SHALL REQUIRE AN EMPLOYER TO USE THE SAME
CARRIER TO PROVIDE BENEFITS REQUIRED BY OR PERMISSIBLE UNDER THIS  ARTI-
CLE  FOR DISABILITY RESULTING FROM INJURY OR SICKNESS TO OR PREGNANCY OF

S. 5791                             6

THE EMPLOYEE AS IT USES TO PROVIDE BENEFITS REQUIRED BY  OR  PERMISSIBLE
UNDER  THIS  ARTICLE  FOR  FAMILY  CARE. AN EMPLOYER MAY USE A DIFFERENT
MEANS, AMONG THOSE SET FORTH IN SUBDIVISIONS ONE THROUGH  FIVE  OF  THIS
SECTION,  TO  PROVIDE  BENEFITS  REQUIRED BY THIS ARTICLE FOR DISABILITY
RESULTING FROM INJURY OR SICKNESS TO OR PREGNANCY OF THE EMPLOYEE,  FROM
THE  MEANS  USED TO PROVIDE BENEFITS REQUIRED BY THIS ARTICLE FOR FAMILY
CARE.
  S 7-b. The workers' compensation  law  is  amended  by  adding  a  new
section 211-a to read as follows:
  S  211-A.  PUBLIC  EMPLOYEES; EMPLOYEE OPT IN. 1. FOR PURPOSES OF THIS
SECTION, "PUBLIC EMPLOYEE" MEANS ANY EMPLOYEE OF THE  STATE,  ANY  POLI-
TICAL  SUBDIVISION OF THE STATE, A PUBLIC AUTHORITY OR ANY OTHER GOVERN-
MENTAL AGENCY OR INSTRUMENTALITY. "PUBLIC EMPLOYER" MEANS THE STATE, ANY
POLITICAL SUBDIVISION OF THE STATE, A  PUBLIC  AUTHORITY  OR  ANY  OTHER
GOVERNMENTAL  AGENCY OR INSTRUMENTALITY THEREOF. "EMPLOYEE ORGANIZATION"
SHALL HAVE THE MEANING SET FORTH IN SECTION TWO HUNDRED ONE OF THE CIVIL
SERVICE LAW.
  2. PUBLIC EMPLOYERS SHALL PROVIDE BENEFITS FOR FAMILY CARE  TO  PUBLIC
EMPLOYEES WHERE AN EMPLOYEE ORGANIZATION THAT REPRESENTS THOSE EMPLOYEES
OPTS  IN  TO FAMILY CARE IN ACCORDANCE WITH THE PROCEDURES AND TERMS SET
FORTH IN SUBDIVISION THREE OF THIS SECTION.
  3. AN EMPLOYEE ORGANIZATION MAY OPT IN TO THE FAMILY CARE  BENEFIT  ON
BEHALF OF THOSE EMPLOYEES IT REPRESENTS:
  A. UPON NOTICE GIVEN PRIOR TO APRIL FIRST, TWO THOUSAND TEN, WHICH OPT
IN SHALL BECOME EFFECTIVE ONLY ON JULY FIRST, TWO THOUSAND TEN;
  B.  AT  ANY  TIME  UPON NINETY DAYS NOTICE FOR ANY EMPLOYER WHO IS NOT
PROVIDING DISABILITY BENEFITS FOR INJURY OR SICKNESS TO OR PREGNANCY  OF
AN  EMPLOYEE UNDER SECTION TWO HUNDRED TWELVE OF THIS ARTICLE, OR WHO IS
SELF-INSURED FOR SUCH BENEFITS;
  C. FOR ANY EMPLOYER WHO IS PROVIDING DISABILITY BENEFITS FOR INJURY OR
SICKNESS TO OR PREGNANCY OF AN EMPLOYEE UNDER SECTION TWO HUNDRED TWELVE
OF THIS ARTICLE, UPON NOTICE AT LEAST NINETY DAYS PRIOR TO  THE  EXPIRA-
TION  OF THE EMPLOYER'S INSURANCE POLICY FOR SUCH BENEFITS, WHICH OPT IN
SHALL BE EFFECTIVE ONLY FOR THE TIME PERIOD COVERED  BY  ANY  SUBSEQUENT
POLICY OR RENEWAL; OR
  D.  AT ANY TIME AS IS MUTUALLY AGREED UPON BETWEEN THE EMPLOYEE ORGAN-
IZATION AND ANY PUBLIC EMPLOYER.
  AN EMPLOYEE ORGANIZATION THAT HAS OPTED IN TO THE FAMILY CARE  BENEFIT
MAY  OPT  OUT OF IT WITHIN THE TIME PERIODS, AND EFFECTIVE UPON THE SAME
DATES, SET FORTH IN THIS PARAGRAPH.
  4. IN THE ABSENCE OF ANY CONTRARY STATEMENT IN  A COLLECTIVELY NEGOTI-
ATED AGREEMENT UNDER ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW, A PUBLIC
EMPLOYER MAY REQUIRE PUBLIC EMPLOYEES WHO OPT IN UNDER THIS  SECTION  TO
CONTRIBUTE  UP  TO THE FAMILY CARE COST, AS DEFINED IN SUBDIVISION TWEN-
TY-FOUR OF SECTION TWO HUNDRED ONE OF THIS ARTICLE, PER WEEK IN  ACCORD-
ANCE  WITH  THE  PROCEDURE SET FORTH IN SECTION TWO HUNDRED NINE OF THIS
ARTICLE.
  S 8. Subdivisions 1 and 2 of section 212 of the workers'  compensation
law,  subdivision  1  as  amended by chapter 740 of the laws of 1960 and
subdivision 2 as amended by chapter 120 of the laws of 1969, are amended
to read as follows:
  1. Any employer not required  by  this  article  to  provide  for  the
payment  of  disability  benefits  to  his employees, or to any class or
classes thereof, may become a  covered  employer  or  bring  within  the
provisions of this article such employees or class or classes thereof by
voluntarily electing to provide for payment of [such] benefits FOR DISA-

S. 5791                             7

BILITY  RESULTING FROM INJURY OR SICKNESS TO OR PREGNANCY OF AN EMPLOYEE
OR FOR FAMILY CARE, OR BOTH, in one or more of the  ways  set  forth  in
section  two  hundred eleven OF THIS ARTICLE; but such election shall be
subject  to  the  approval  of  the  chairman,  and if the employees are
required to contribute to the cost of such benefits  the  assent  within
thirty  days  before  such approval is granted, of more than one-half of
such employees shall be evidenced to the satisfaction of  the  chairman.
On  approval  by  the chairman of such election to provide benefits, all
the provisions of this article shall become and continue  applicable  as
if  the employer were a covered employer as defined in this article. The
obligation to continue as a covered employer with respect  to  employees
for  whom  provision of benefits is not required under this article, may
be discontinued by such employer on ninety days notice to  the  chairman
in  writing  and  to his employees, after he has provided for payment of
benefits for not less than one year and with such provision for  payment
of  obligations  incurred  on  and  prior to the termination date as the
chairman may approve.   ANY ELECTION BY A  PUBLIC  EMPLOYER  TO  PROVIDE
FAMILY CARE BENEFITS MADE PRIOR TO JULY FIRST, TWO THOUSAND TEN SHALL BE
EFFECTIVE ON THAT DATE.
  2.  Notwithstanding  the  definition of "employer" and "employment" in
section two hundred one of this article, THE STATE OR ANY AGENCY  THERE-
OF,  a  public  authority, a municipal corporation or a fire district or
other political subdivision may become a  covered  employer  under  this
article  by  complying  with  the  provisions of subdivision one of this
section and may discontinue such status only as provided in that  subdi-
vision.
  S  8-a.  Subdivision 2 of section 76 of the workers' compensation law,
as added by chapter 600 of the laws of  1949,  is  amended  to  read  as
follows:
  2.  The purposes of the state insurance fund herein created are hereby
enlarged to provide [for the] insurance [by the state insurance fund of]
FOR the payment of the benefits required by section two hundred four  of
this  chapter, INCLUDING BENEFITS FOR FAMILY CARE PROVIDED EITHER IN THE
SAME POLICY WITH OR IN A SEPARATE POLICY FROM  BENEFITS  FOR  DISABILITY
RESULTING FROM INJURY OR SICKNESS TO OR PREGNANCY OF AN EMPLOYEE, AND AS
PROVIDED  PURSUANT  TO  SECTION TWO HUNDRED ELEVEN-A OF THIS CHAPTER.  A
separate fund is hereby created within the state insurance  fund,  which
shall  be  known  as  the  "disability  benefits  fund", and which shall
consist of all premiums received and paid into said fund on  account  of
such insurance, all securities acquired by and through the use of moneys
belonging  to  said fund and of interest earned upon moneys belonging to
said fund and deposited or invested as herein provided. Said  disability
benefits  fund  shall be applicable to the payment of benefits, expenses
and assessments on account of insurance written pursuant to article nine
of this chapter.
  S 9. Subdivisions 1, 2, 3 and 4 of section 217 of the workers' compen-
sation law, subdivision 1 as amended by chapter 167 of the laws of 1999,
subdivisions 2 and 3 as amended by chapter 270 of the laws of  1990  and
subdivision  4  as added by chapter 600 of the laws of 1949, are amended
to read as follows:
  1. Written notice and proof of disability 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 disa-
bility. Additional proof shall be furnished thereafter from time to time

S. 5791                             8

as the employer or carrier or chair may require but not more often  than
once each week. Such proof shall include:
  (A)  IN THE CASE OF DISABILITY RESULTING FROM INJURY OR SICKNESS TO OR
PREGNANCY OF THE EMPLOYEE, 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 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.] HEALTH CARE PROVIDER;
  (B)  IN  THE CASE OF FAMILY CARE FOR BONDING WITH A NEW CHILD, A BIRTH
CERTIFICATE, CERTIFICATE OF ADOPTION, OR OTHER COMPETENT EVIDENCE  SHOW-
ING  THAT  THE EMPLOYEE IS THE PARENT OF A CHILD WITHIN TWELVE MONTHS OF
THAT CHILD'S BIRTH OR PLACEMENT FOR ADOPTION OR  FOSTER  CARE  WITH  THE
EMPLOYEE;
  (C) IN THE CASE OF BENEFITS FOR CARE OF A FAMILY MEMBER WITH A SERIOUS
HEALTH CONDITION:
  (I)  A STATEMENT BY THE FAMILY MEMBER'S HEALTH CARE PROVIDER, CONTAIN-
ING FACTS AND OPINIONS AS TO SUCH HEALTH CONDITION  IN  COMPLIANCE  WITH
REGULATIONS OF THE CHAIR; AND
  (II) A STATEMENT SUBSCRIBED BY THE EMPLOYEE AND AFFIRMED BY HIM OR HER
AS  TRUE  UNDER  PENALTIES  OF  PERJURY, OR OTHER EQUIVALENT DOCUMENTARY
PROOF, THAT THE EMPLOYEE IS A PRIMARY CARE GIVER FOR THE  FAMILY  MEMBER
DURING THE TIME OF DISABILITY.
  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 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 within twenty-six
weeks after commencement of the period of disability.  No limitation  of
time  provided  in  this  section shall run as against any person who is
mentally incompetent, or physically 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.
  2. An employee claiming benefits FOR HIS OR HER INJURY OR SICKNESS  OR
PREGNANCY,  OR  THE FAMILY MEMBER OF SUCH EMPLOYEE IN ANY CASE WHERE THE
EMPLOYEE CLAIMS FAMILY CARE BENEFITS FOR PROVIDING CARE TO  THAT  FAMILY
MEMBER shall, as requested by the employer or carrier, submit himself or
herself  at intervals, but not more than once a week, for examination by
a [physician or podiatrist or chiropractor or dentist or psychologist or
certified nurse midwife] RELEVANT HEALTH CARE PROVIDER designated by the
employer or carrier. All such examinations shall be without cost to  the
employee  OR  FAMILY  MEMBER  and shall be held at a reasonable time and
place.
  3. The chair may direct the claimant WHO SEEKS DISABILITY BENEFITS FOR
HIS OR HER INJURY OR SICKNESS OR PREGNANCY,  OR  THE  CLAIMANTS'  FAMILY
MEMBER  WHERE THE CLAIMANT SEEKS DISABILITY BENEFITS FOR FAMILY LEAVE TO
PROVIDE CARE TO THAT FAMILY MEMBER to submit to examination by a [physi-
cian or podiatrist or chiropractor or dentist or psychologist]  RELEVANT
HEALTH  CARE  PROVIDER designated by him or her in any case in which the
claim to disability benefits is contested and in  claims  arising  under

S. 5791                             9

section  two  hundred  seven  OF THIS ARTICLE, and in other cases as the
chair or board may require.
  4.  Refusal  of  the  claimant  OR FAMILY MEMBER without good cause to
submit to any such examination shall disqualify [him] THE CLAIMANT  from
all  benefits  hereunder  for  the  period of such refusal, except as to
benefits already paid.
  S 9-a. Section 217 of the workers'  compensation  law  is  amended  by
adding a new subdivision 7 to read as follows:
  7. THE COMMISSIONER OF LABOR, IN CONSULTATION WITH THE COMMISSIONER OF
HEALTH  AND  THE DIRECTOR OF THE OFFICE FOR THE AGING, SHALL DEVELOP AND
IMPLEMENT AN OUTREACH PROGRAM TO ENSURE  THAT  INDIVIDUALS  WHO  MAY  BE
ELIGIBLE TO RECEIVE TEMPORARY DISABILITY INSURANCE AND FAMILY CARE BENE-
FITS  UNDER  THIS CHAPTER ARE MADE AWARE OF THESE BENEFITS. THE OUTREACH
PROGRAM SHALL PROVIDE ADEQUATE INFORMATION ON ELIGIBILITY  REQUIREMENTS,
THE CLAIMS PROCESS, BENEFIT AMOUNTS, REINSTATEMENT AND NONDISCRIMINATION
RIGHTS, CONFIDENTIALITY AND COORDINATION OF LEAVE UNDER THIS CHAPTER AND
OTHER SECTIONS. THE COMMISSIONER SHALL PROVIDE SUCH OUTREACH INFORMATION
IN  AS MANY LANGUAGES AND AS FREQUENTLY AS THE COMMISSIONER DEEMS NECES-
SARY TO PROVIDE ADEQUATE NOTICE.
  S 10.  Section 221 of the workers'  compensation  law,  as  separately
amended  by chapters 425 and 500 of the laws of 1985, is amended to read
as follows:
  S 221. Determination of  contested  claims  for  disability  benefits.
Within  twenty-six weeks of written notice of rejection of claim, DENIAL
OF RIGHTS UNDER SECTION TWO HUNDRED THREE-A OR TWO  HUNDRED  THREE-B  OF
THIS  ARTICLE, the employee may file with the chairman a notice that his
or her claim for disability benefits has not been paid,  [and]  OR  THAT
THE  EMPLOYEE  HAS  BEEN DENIED RIGHTS GUARANTEED BY SECTION TWO HUNDRED
THREE-A OR TWO HUNDRED THREE-B OF THIS ARTICLE. IN CASES  OF  DENIAL  OF
BENEFITS,  the  employee shall submit proof of disability OR ELIGIBILITY
FOR FAMILY CARE and of his or her  employment,  wages  and  other  facts
reasonably  necessary  for determination of the employee's right to such
benefits OR PROOF OF DENIAL OF RIGHTS UNDER SECTION TWO HUNDRED  THREE-A
OR  TWO  HUNDRED  THREE-B OF THIS ARTICLE OR OF RETALIATION.  Failure to
file such notice within the time provided, may be excused by the  chair-
man  if  it can be shown to the satisfaction of the chairman not to have
been reasonably possible to furnish such notice and that such notice was
furnished as soon as possible.  On demand of the chairman  the  employer
or  carrier shall forthwith deliver to the chairman PROOF OF DISABILITY,
INCLUDING IF RELEVANT the original or  a  true  copy  of  the  attending
physician's  or  attending  podiatrist's  or  accredited  practitioner's
statement, wage  and  employment  data  and  all  other  papers  in  the
possession  of  the  employer  or  carrier with respect to such claim OR
COMPLAINT.
  The board shall have full power and authority to determine all  issues
in  relation  to every such claim for disability OR FAMILY CARE benefits
required or provided under this article, OR WITH RESPECT  TO  DENIAL  OF
RIGHTS  UNDER SECTION TWO HUNDRED THREE-A OR TWO HUNDRED THREE-B OF THIS
ARTICLE OR INCLUDING ORDERING PAYMENT OF  BENEFITS,  DAMAGES  AND  REIN-
STATEMENT  and  shall  file  its decision in the office of the chairman.
Upon such filing, the chairman shall send to the parties a copy  of  the
decision.  Either party may present evidence and be represented by coun-
sel at any hearing on such claim.  The decision of the  board  shall  be
final  as  to  all  questions of fact and, except as provided in section
twenty-three of this chapter, as to all questions of law. Every decision
of the board shall be complied with in accordance with its terms  within

S. 5791                            10

ten days thereafter except in case of appeal, and any payments due under
such  decision  shall  draw  simple  interest from thirty days after the
making thereof at the rate provided in section five thousand four of the
civil practice law and rules.
  S  11.  Subdivision 2 of section 229 of the workers' compensation law,
as added by chapter 271 of the laws of  1985,  is  amended  to  read  as
follows:
  2.  Whenever  an  employee  of  a covered employer who is eligible for
benefits under section two hundred four of this article shall be  absent
from  work due to a disability as defined in subdivision nine of section
two hundred one of this article for more than  seven  consecutive  days,
the  employer shall provide the employee with a written statement of the
employee's rights under this article in a form prescribed by the  chair-
man.  The  statement shall be provided to the employee within five busi-
ness days after the employee's seventh consecutive day of absence due to
disability or within five business days  after  the  employer  knows  or
should  know that the employee's absence is due to disability, whichever
is later. EACH COVERED EMPLOYER SHALL PROVIDE EACH EMPLOYEE WITH A TYPE-
WRITTEN, PRINTED OR ELECTRONIC NOTICE IN A FORM PRESCRIBED BY THE CHAIR,
STATING THAT THE EMPLOYER HAS PROVIDED FOR  THE  PAYMENT  OF  DISABILITY
BENEFITS AS REQUIRED BY THIS ARTICLE WITHIN THIRTY DAYS OF THE EFFECTIVE
DATE  OF THE CHAPTER OF THE LAWS OF TWO THOUSAND NINE WHICH AMENDED THIS
SUBDIVISION.  EACH COVERED EMPLOYER SHALL PROVIDE SUCH NOTICE TO ALL NEW
EMPLOYEES WITHIN THIRTY DAYS OF THEIR FIRST DAY OF WORK.
  S 12. The workers' compensation law is amended by adding a new section
239-a to read as follows:
  S 239-A. FAMILY CARE STUDY AND MONITORING.   1.    THE  DEPARTMENT  OF
INSURANCE SHALL STUDY, AND REPORT TO THE GOVERNOR AND BOTH HOUSES OF THE
LEGISLATURE  BY  APRIL  FIRST,  TWO THOUSAND TEN, ON THE FEASIBILITY AND
IMPACT OF COMMUNITY RATING DISABILITY INSURANCE OR ANY ASPECT THEREOF.
  2. THERE SHALL BE CREATED THE  FAMILY  CARE  ADVISORY  COUNCIL,  WHICH
SHALL  CONSIST  OF  FIFTEEN  MEMBERS  TO BE APPOINTED BY THE GOVERNOR AS
FOLLOWS: TWO ON RECOMMENDATION BY THE NEW YORK STATE AMERICAN FEDERATION
OF LABOR-CONGRESS OF INDUSTRIAL ORGANIZATIONS,  ONE  OF  WHOM  SHALL  BE
REPRESENTATIVE  OF PUBLIC EMPLOYEE ORGANIZATIONS CERTIFIED UNDER ARTICLE
FOURTEEN OF THE CIVIL SERVICE LAW, PARTICIPATING IN THE PAID FAMILY CARE
PLAN, ONE OF WHOM  IS  REPRESENTATIVE  OF  UNIONS  REPRESENTING  WORKERS
EMPLOYED IN THE PRIVATE SECTOR; TWO WHO ARE REPRESENTATIVES OF ORGANIZA-
TIONS  THAT REPRESENT EITHER COVERED BUSINESS OR PUBLIC EMPLOYERS IN NEW
YORK STATE PARTICIPATING IN THE PAID FAMILY LEAVE  PLAN;  TWO  ON  NOMI-
NATION OF THE SPEAKER OF THE ASSEMBLY; ONE ON NOMINATION BY THE MINORITY
LEADER OF THE ASSEMBLY; TWO ON NOMINATION BY THE TEMPORARY  PRESIDENT OF
THE  SENATE; ONE ON NOMINATION BY THE MINORITY LEADER OF THE SENATE; AND
THE SUPERINTENDENT OF INSURANCE, COMMISSIONER OF LABOR  AND CHAIR OF THE
WORKERS' COMPENSATION BOARD, WHO SHALL SERVE AS MEMBERS EX OFFICIO.  THE
COMMISSIONER  OF  LABOR  SHALL SERVE AS CHAIR OF THE COUNCIL. THE SUPER-
INTENDENT OF INSURANCE AND CHAIR  OF  THE  WORKERS'  COMPENSATION  BOARD
SHALL  CONSULT  REGULARLY  WITH THE COUNCIL ON THE IMPLEMENTATION OF THE
FAMILY CARE BENEFIT. THE DEPARTMENT OF LABOR, THE  INSURANCE  DEPARTMENT
AND  THE WORKERS' COMPENSATION BOARD SHALL PROVIDE ALL NECESSARY PERSON-
NEL AND LOGISTICAL SUPPORT AS MAY BE NECESSARY TO COMPLETE THE DUTIES OF
THE ADVISORY COUNCIL. THE COUNCIL OR ANY OF ITS MEMBERS MAY  ISSUE  SUCH
RECOMMENDATIONS  OR  REPORTS  AS  THEY DEEM WARRANTED ON THE FAMILY CARE
BENEFIT, INCLUDING ON THE SCOPE OF THE BENEFIT, PROBLEMS WITH THE  BENE-
FIT;  FUNDING  OF  THE  BENEFIT   INCLUDING PASS-THROUGH COSTS; POSSIBLE
STATUTORY AMENDMENTS AND REGULATORY CHANGES; USAGE RATES; OUTREACH;  AND

S. 5791                            11

COMMUNITY  RATING. ANY SUCH RECOMMENDATIONS OR REPORTS SHALL BE PROVIDED
TO THE GOVERNOR, SUPERINTENDENT OF INSURANCE, SPEAKER OF  THE  ASSEMBLY,
TEMPORARY PRESIDENT OF THE SENATE AND MINORITY LEADERS OF THE SENATE AND
ASSEMBLY.    EACH  MEMBER  OF THE COMMISSION SHALL SERVE A TERM OF THREE
YEARS. AN APPOINTMENT TO FILL A VACANCY SHALL BE MADE FOR THE  REMAINDER
OF THE AFFECTED TERM. MEMBERS SHALL RECEIVE NO COMPENSATION.
  S  13.  Paragraph 3 of subsection (a) of section 1113 of the insurance
law is amended to read as follows:
  (3) "Accident and health insurance," means (i) insurance against death
or personal injury by accident or by any  specified  kind  or  kinds  of
accident  and  insurance  against  sickness,  ailment  or bodily injury,
including insurance providing disability benefits  pursuant  to  article
nine  of  the  workers'  compensation law, INCLUDING ANY INSURANCE UNDER
THAT ARTICLE FOR FAMILY CARE  BENEFITS,  DISABILITY  BENEFITS  RESULTING
FROM  INJURY  OR SICKNESS TO OR PREGNANCY OF AN EMPLOYEE, OR ALL, except
as specified in item (ii) [hereof] OF THIS PARAGRAPH; and (ii)  non-can-
cellable  disability  insurance,  meaning  insurance  against disability
resulting from sickness, ailment or bodily injury (but excluding  insur-
ance solely against accidental injury) under any contract which does not
give  the  insurer  the  option  to  cancel  or  otherwise terminate the
contract at or after one year from its effective date or renewal date.
  S 14. This act shall take effect immediately; provided, however, that:
  (a) Sections one, two, three, three-a, three-b, three-c,  four,  five,
six, seven, seven-a, seven-b, eight, nine, nine-a, ten, eleven and thir-
teen of this act shall take effect January 1, 2010.
  (b)  Paragraph  a  of  subdivision  3 of section 211-a of the workers'
compensation law, as added by  section  seven-b  of  this  act  allowing
public employees to opt in to family care benefits prior to July 1, 2010
and  subdivision  1  of  section 212 of the workers' compensation law as
amended by section eight of this act allowing public employers to opt in
to family care benefits prior to July 1, 2010, shall take  effect  imme-
diately.
  (c)  Effective  immediately,  the addition, amendment and/or repeal of
any rules or regulations necessary for the implementation of this act on
its effective date are authorized and directed to be made and  completed
on or before such effective date.