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

                                  6289

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                             March 11, 2011
                               ___________

Introduced  by  M.  of  A.  NOLAN, COOK, WEPRIN, JAFFEE, BARRON, GIBSON,
  JACOBS, CASTRO, WEISENBERG, BENEDETTO, SIMOTAS, N. RIVERA,  STEVENSON,
  LANCMAN,  CAHILL, SPANO, SCHIMEL, TITUS, MOYA -- Multi-Sponsored by --
  M. of A. ABBATE, BOYLAND, BRENNAN, GLICK, GOTTFRIED, HEASTIE, McENENY,
  PHEFFER, SCARBOROUGH, WEINSTEIN --  read  once  and  referred  to  the
  Committee on Labor

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 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, SICKNESS 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09329-02-1

              

A. 6289                             2

  S 2. 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 3. 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) DISABILITY REQUIRING FAMILY CARE.
  S  4.  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
WHICH THE EMPLOYEE USES FOR FAMILY CARE, and for which [he] THE EMPLOYEE
has not received his OR HER regular remuneration.
  S 5. 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:
  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 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.
  16. "CHILD" MEANS A BIOLOGICAL, ADOPTED OR FOSTER CHILD, A STEP-CHILD,
A LEGAL WARD OR A CHILD OF A PERSON WHO STANDS IN PARENTAL  RELATIONSHIP
TO THE CHILD WHO IS:
  A. LESS THAN 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  BIOLOGICAL  OR  ADOPTIVE  PARENT, STEP-PARENT OR
PERSON WHO STOOD IN  PARENTAL  RELATIONSHIP  TO  AN  EMPLOYEE  WHEN  THE
EMPLOYEE WAS:
  A. LESS THAN EIGHTEEN YEARS OF AGE; OR
  B.  EIGHTEEN  YEARS OF AGE OR OLDER AND INCAPABLE OF SELF-CARE BECAUSE
OF A MENTAL OR PHYSICAL DISABILITY.

A. 6289                             3

  20. "FAMILY MEMBER" MEANS A CHILD, SPOUSE, DOMESTIC  PARTNER,  PARENT,
GRANDCHILD, GRANDPARENT, MOTHER OR FATHER OF SPOUSE OR DOMESTIC PARTNER.
  21.  PERSONS  WHO  STAND  IN  PARENTAL RELATIONSHIP TO A CHILD 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 RESPONSI-
BILITY 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 A HEALTH CARE PRACTITIONER WHO IS
LICENSED UNDER RELEVANT FEDERAL OR STATE LAWS TO PROVIDE MEDICAL,  EMER-
GENCY  OR HEALTH SERVICES AND IS TREATING AN EMPLOYEE OR A FAMILY MEMBER
FOR A SERIOUS HEALTH CONDITION.
  24. "FAMILY CARE COST" SHALL MEAN:
  A. PRIOR TO JULY FIRST, TWO THOUSAND THIRTEEN,  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 THE SUPERINTENDENT'S ACTUARIALLY SOUND ESTIMATION
OF THE COST PER EMPLOYEE OF PROVIDING FAMILY CARE BENEFITS,  BUT  IN  NO
EVENT  MORE  THAN  ONE HUNDRED FIFTEEN PERCENT OF SUCH ESTIMATION OF THE
COST PER EMPLOYEE OF PROVIDING FAMILY CARE BENEFITS  THROUGH  THE  STATE
INSURANCE FUND.
  S  6. 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.
  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  7. 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, AFTER JANUARY FIRST, TWO  THOUSAND  TWELVE,  HAS  IN  EMPLOYMENT
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.

A. 6289                             4

  S 8. 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  TWELVE  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.
THE WEEKLY BENEFIT WHICH THE DISABLED EMPLOYEE IS  ENTITLED  TO  RECEIVE
FOR DISABILITY COMMENCING ON OR AFTER APRIL FIRST, TWO THOUSAND THIRTEEN
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 FOURTEEN 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 FIFTEEN 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 9. 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, 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 disability; 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, 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  resulting
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

A. 6289                             5

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
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, SICKNESS OR  PREGNANCY
OF THE EMPLOYEE commencing before the employee becomes eligible to bene-
fits  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, SICKNESS OR PREGNANCY OF THE EMPLOYEE,
INCLUDING ANY LEAVE TAKEN UNDER SECTION SEVENTY-ONE OR SEVENTY-THREE  OF
THE CIVIL SERVICE LAW.
  S 10. 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, SICKNESS OR PREGNANCY.   THE  RECEIPT  OF
BENEFITS  FOR DISABILITY RESULTING FROM INJURY, SICKNESS OR PREGNANCY OF
THE EMPLOYEE, SHALL NOT COUNT TOWARD ANY TIME LIMITATION UNDER  SUBDIVI-
SION  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 SUBDIVISION ONE OF
SECTION TWO HUNDRED FIVE OF THIS ARTICLE ON THE RECEIPT OF BENEFITS  FOR
DISABILITY RESULTING FROM INJURY, SICKNESS OR PREGNANCY TO THE EMPLOYEE,
EXCEPT  THAT  AN  EMPLOYEE  MAY  RECEIVE DISABILITY BENEFITS ON ONLY ONE
CLAIM AT ANY TIME.

A. 6289                             6

  S 11. 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, SICKNESS 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  12.  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, SICKNESS OR PREGNANCY OF 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, SICKNESS OR PREGNANCY OF THE EMPLOYEE, FROM THE MEANS USED
TO PROVIDE BENEFITS REQUIRED BY THIS ARTICLE FOR FAMILY CARE.
  S 13. 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 TWELVE,  WHICH
OPT IN SHALL BECOME EFFECTIVE ONLY ON JULY FIRST, TWO THOUSAND TWELVE;
  B.  AT  ANY  TIME  UPON NINETY DAYS NOTICE FOR ANY EMPLOYER WHO IS NOT
PROVIDING DISABILITY BENEFITS FOR INJURY, SICKNESS 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,
SICKNESS OR PREGNANCY OF AN EMPLOYEE UNDER SECTION TWO HUNDRED TWELVE OF
THIS  ARTICLE,  UPON NOTICE AT LEAST NINETY DAYS PRIOR TO THE EXPIRATION
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.

A. 6289                             7

  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 14. 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-
BILITY  RESULTING  FROM  INJURY, SICKNESS 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] CHAIR, and  if  the  employees
are required to contribute to the cost of such benefits the assent with-
in thirty days before such approval is granted, of more than one-half of
such  employees shall be evidenced to the satisfaction of the [chairman]
CHAIR.  On approval by the [chairman] CHAIR 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]  CHAIR  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 TWELVE SHALL BE EFFECTIVE ON THAT DATE.
  2. Notwithstanding the definition of "employer"  and  "employment"  in
section  two hundred one of this article, THE STATE, a public authority,
a municipal corporation or a fire district or other  political  subdivi-
sion  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] SUCH subdivision.
  S  15.  Subdivisions  1,  2,  3  and  4 of section 217 of the workers'
compensation 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
as  the employer or carrier or chair may require but not more often than
once each week. Such proof shall include:

A. 6289                             8

  (A) IN THE CASE OF DISABILITY RESULTING FROM INJURY, SICKNESS OR PREG-
NANCY 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 THE EMPLOYEE'S  INJURY,  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,  SICKNESS  OR  PREGNANCY, OR THE CLAIMANT'S 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
section two hundred seven OF THIS ARTICLE, and in  other  cases  as  the
chair or board may require.

A. 6289                             9

  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  16.    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] CHAIR  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 [chairman] CHAIR if it can be shown to  the  satisfac-
tion  of  the  [chairman]  CHAIR not to have been reasonably possible to
furnish such notice and that such notice was furnished as soon as possi-
ble.  On demand of the [chairman] CHAIR the employer  or  carrier  shall
forthwith deliver to the [chairman] CHAIR 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]
CHAIR.  Upon such filing, the [chairman] CHAIR shall send to the parties
a copy of the decision. Either party may present evidence and be repres-
ented by counsel 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 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 thou-
sand four of the civil practice law and rules.
  S  17.  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] CHAIR. The statement shall be provided to the employee within  five
business  days  after  the employee's seventh consecutive day of absence

A. 6289                            10

due to disability or within five business days after the employer  knows
or  should know that the employee's absence is due to disability, which-
ever is later. EACH COVERED EMPLOYER SHALL PROVIDE EACH EMPLOYEE WITH  A
TYPEWRITTEN,  PRINTED  OR  ELECTRONIC NOTICE IN A FORM PRESCRIBED BY THE
CHAIR, STATING THAT THE EMPLOYER HAS PROVIDED FOR THE PAYMENT  OF  DISA-
BILITY  BENEFITS  AS  REQUIRED BY THIS ARTICLE WITHIN THIRTY DAYS OF THE
EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND  ELEVEN  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 18. 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 TWELVE, 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
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 19. 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

A. 6289                            11

FROM INJURY, SICKNESS OR PREGNANCY OF AN EMPLOYEE,  OR  ALL,  except  as
specified in item (ii) [hereof] OF THIS PARAGRAPH; and (ii) non-cancell-
able  disability insurance, meaning insurance against disability result-
ing  from  sickness,  ailment  or bodily injury (but excluding insurance
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 20. This act shall take effect immediately; provided, however, that:
  (a)  Sections  two,  three,  four, five, six, seven, eight, nine, ten,
eleven, twelve, thirteen,  fourteen,  fifteen,  sixteen,  seventeen  and
nineteen of this act shall take effect January 1, 2012.
  (b)  Paragraph  a  of  subdivision  3 of section 211-a of the workers'
compensation law, as added by section  thirteen  of  this  act  allowing
public employees to opt in to family care benefits prior to July 1, 2012
and  subdivision  1  of  section 212 of the workers' compensation law as
amended by section fourteen of this act allowing public employers to opt
in to family care benefits prior to July  1,  2012,  shall  take  effect
immediately.
  (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.