S T A T E O F N E W Y O R K
________________________________________________________________________
8380
I N S E N A T E
May 4, 2018
___________
Introduced by Sen. FUNKE -- read twice and ordered printed, and when
printed to be committed to the Committee on Labor
AN ACT to amend the workers' compensation law, in relation to paid fami-
ly leave and bereavement
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 15 of section 201 of the workers' compensation
law, as added by section 2 of part SS of chapter 54 of the laws of 2016,
is amended to read as follows:
15. "Family leave" shall mean any leave taken by an employee from
work: (a) to participate in providing care, including physical or
psychological care, for a family member of the employee made necessary
by a serious health condition of the family member INCLUDING BEREAVEMENT
UPON THE DEATH OF SUCH 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; or (c) because of any qualifying exigency
as interpreted under the family and medical leave act, 29 U.S.C.S §
2612(a)(1)(e) and 29 C.F.R. S.825.126(a)(1)-(8), arising out of the fact
that the spouse, domestic partner, child, or parent of the employee is
on active duty (or has been notified of an impending call or order to
active duty) in the armed forces of the United States; OR (D) LEAVE
TAKEN FOR THE PURPOSES OF BEREAVEMENT DUE TO THE DEATH OF A FAMILY
MEMBER.
§ 2. Paragraph (a) of subdivision 2 of section 204 of the workers'
compensation law, as added by section 5 of part SS of chapter 54 of the
laws of 2016, is amended to read as follows:
(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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15544-02-8
S. 8380 2
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, NOT INCLUD-
ING FAMILY LEAVE DUE TO BEREAVEMENT, 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, shall not exceed twelve weeks during any fifty-two week
calendar period, NOT INCLUDING FAMILY LEAVE DUE TO BEREAVEMENT, 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-
ly wage in effect. ON OR AFTER JANUARY FIRST, TWO THOUSAND TWENTY
CLAIMANTS WHO ARE ELIGIBLE FOR FAMILY LEAVE DUE TO BEREAVEMENT SHALL
RECEIVE UP TO TWO WEEKS OF FAMILY LEAVE FOR BEREAVEMENT DURING ANY
FIFTY-TWO WEEK CALENDAR PERIOD AND SHALL BE SIXTY PERCENT OF THE EMPLOY-
EE'S AVERAGE WEEKLY WAGE BUT SHALL NOT EXCEED SIXTY PERCENT OF THE STATE
AVERAGE WEEKLY WAGE, ON OR AFTER JANUARY FIRST, TWO THOUSAND TWENTY-ONE
CLAIMANTS WHO ARE ELIGIBLE FOR FAMILY LEAVE DUE TO BEREAVEMENT SHALL
RECEIVE UP TO FOUR WEEKS OF FAMILY LEAVE FOR BEREAVEMENT 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 STATE AVERAGE WEEKLY WAGE, ON OR AFTER JANUARY FIRST OF EACH
SUCCEEDING YEAR, CLAIMANTS WHO ARE ELIGIBLE FOR FAMILY LEAVE DUE TO
BEREAVEMENT SHALL RECEIVE UP TO SIX WEEKS OF FAMILY LEAVE FOR BEREAVE-
MENT 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 STATE AVERAGE WEEKLY WAGE IN EFFECT EACH
YEAR. 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) of this paragraph 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 overall
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.
§ 3. Paragraphs (a) and (b) of subdivision 2 of section 205 of the
workers' compensation law, as added by section 6 of part SS of chapter
54 of the laws of 2016, are amended to read as follows:
S. 8380 3
(a) For more than [twelve weeks, or] the maximum duration permitted as
set forth in paragraph (a) of subdivision two of section two hundred
four of this article, during a period of fifty-two consecutive calendar
weeks, or for any period in which the family leave combined with the
disability benefits previously paid exceeds twenty-six weeks during the
same fifty-two consecutive calendar weeks PLUS ANY FAMILY LEAVE DUE TO
BEREAVEMENT;
(b) For any period of family leave wherein the notice and medical
certification, OR DEATH CERTIFICATE, as prescribed by the chair has not
been filed. At the discretion of the chair or chair's designee pursuant
to section two hundred twenty-one of this article, the family member who
is the recipient of care may be required to submit to a physical exam-
ination by a qualified health care provider UNLESS SUCH FAMILY MEMBER IS
UNABLE TO BE EXAMINED DUE TO DEATH. Such examination shall be paid for
by the carrier; and
§ 4. Subdivision 5 of section 205 of the workers' compensation law, as
added by section 6 of part SS of chapter 54 of the laws of 2016, is
amended to read as follows:
5. In any case in which the necessity for family leave is foreseeable
based on an expected birth or placement, the employee shall provide the
employer with not less than thirty days notice before the date the leave
is to begin, of the employee's intention to take family leave under this
article, except that if the date of the birth or placement requires
leave to begin in less than thirty days, the employee shall provide such
notice as is practicable. In any case in which the necessity for family
leave is foreseeable based on planned medical treatment, the employee
shall provide the employer with not less than thirty days notice, before
the date the leave is to begin, of the employees intention to take fami-
ly leave under this article, except that if the date of the treatment
requires leave to begin in less than thirty days, the employee shall
provide such notice as is practicable. IN THE CASE OF FAMILY LEAVE DUE
TO BEREAVEMENT NOTICE SHALL BE PROVIDED AS SOON AS PRACTICABLE.
§ 5. Subdivision 1 of section 217 of the workers' compensation law, as
amended by section 16 of part SS of chapter 54 of the laws of 2016, is
amended to read as follows:
1. Written notice and proof of disability or proof of need for family
leave 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 disability. 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 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 family leave care recipient's health care provider, 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. IN THE EVENT THAT THE CLAIMANT IS ELIGIBLE FOR FAMILY LEAVE DUE
TO BEREAVEMENT, A DEATH CERTIFICATE SHALL SERVE AS PROOF OF NEED OF
LEAVE. 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
S. 8380 4
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 with-
in the period of actual disability or family leave that does not exceed
the statutory maximum period permitted under section two hundred four of
this article. No limitation of time provided in this section shall run
as against any disabled employee who is mentally incompetent, or phys-
ically 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.
§ 6. Subdivisions 3 and 4 of section 217 of the workers' compensation
law, as amended by section 16 of part SS of chapter 54 of the laws of
2016, are amended to read as follows:
3. The chair or chair's designee, pursuant to section two hundred
twenty-one of this article, may direct the claimant or family leave care
recipient to submit to examination by a health care provider designated
by him or her in any case in which the claim to disability or family
leave 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. IN THE EVENT THAT THE FAMILY MEMBER OR THE FAMILY LEAVE
CARE RECIPIENT IS UNABLE TO BE EXAMINED DUE TO DEATH, THIS SECTION SHALL
NOT APPLY.
4. Refusal of the claimant or family leave care recipient without good
cause to submit to any such examination shall disqualify the claimant or
employee from all benefits hereunder for the period of such refusal,
except as to benefits already paid. IN THE EVENT THAT THE FAMILY MEMBER
OR FAMILY LEAVE CARE RECIPIENT IS UNABLE TO BE EXAMINED DUE TO DEATH,
THIS SECTION SHALL NOT APPLY.
§ 7. This act shall take effect immediately and shall apply to all
policies or contracts issued, renewed, modified, altered or amended on
or after January 1, 2020.
