S T A T E O F N E W Y O R K
________________________________________________________________________
8201
2023-2024 Regular Sessions
I N A S S E M B L Y
October 27, 2023
___________
Introduced by M. of A. O'DONNELL -- read once and referred to the
Committee on Labor
AN ACT to amend the workers' compensation law, in relation to providing
requirements for sick leave and the provision of certain employee
benefits when such employee is subject to a mandatory or precautionary
order of medically-necessary quarantine or isolation
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The workers' compensation law is amended by adding a new
section 203-d to read as follows:
§ 203-D. PAID FAMILY LEAVE FOR MEDICALLY-NECESSARY QUARANTINE OR
ISOLATION. 1. (A) FOR ALL EMPLOYERS, EACH EMPLOYEE WHO IS SUBJECT TO A
MANDATORY OR PRECAUTIONARY ORDER OF MEDICALLY-NECESSARY QUARANTINE OR
ISOLATION ISSUED BY THE DEPARTMENT OF HEALTH SHALL BE PROVIDED WITH AT
LEAST FIVE DAYS OF PAID SICK LEAVE AND UNPAID LEAVE UNTIL THE TERMI-
NATION OF ANY MANDATORY OR PRECAUTIONARY ORDER OF MEDICALLY-NECESSARY
QUARANTINE OR ISOLATION. AFTER SUCH FIVE DAYS OF PAID SICK LEAVE, AN
EMPLOYEE SHALL BE ELIGIBLE FOR PAID FAMILY LEAVE BENEFITS AND BENEFITS
DUE TO DISABILITY PURSUANT TO THIS SECTION.
(B) EACH EMPLOYEE SHALL BE COMPENSATED AT HIS OR HER REGULAR RATE OF
PAY FOR THOSE REGULAR WORK HOURS DURING WHICH SUCH EMPLOYEE IS ABSENT
FROM WORK DUE TO A MANDATORY OR PRECAUTIONARY ORDER OF MEDICALLY-NECES-
SARY QUARANTINE OR ISOLATION.
(C) SUCH LEAVE SHALL BE PROVIDED WITHOUT LOSS OF AN EMPLOYEE'S ACCRUED
SICK LEAVE.
2. FOR PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE
FOLLOWING MEANINGS:
(A) "DISABILITY" SHALL MEAN: (I) ANY INABILITY OF AN EMPLOYEE TO
PERFORM THE REGULAR DUTIES OF HIS OR HER EMPLOYMENT OR THE DUTIES OF ANY
OTHER EMPLOYMENT WHICH HIS OR HER EMPLOYER MAY OFFER HIM OR HER AS A
RESULT OF A MANDATORY OR PRECAUTIONARY ORDER OF MEDICALLY-NECESSARY
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13317-01-3
A. 8201 2
QUARANTINE OR ISOLATION ISSUED BY THE DEPARTMENT OF HEALTH; AND (II)
WHEN THE EMPLOYEE HAS EXHAUSTED ALL PAID SICK LEAVE PROVIDED BY THE
EMPLOYEE'S EMPLOYER UNDER THIS SECTION.
(B) "FAMILY LEAVE" SHALL MEAN: (I) ANY LEAVE TAKEN BY AN EMPLOYEE FROM
WORK WHEN AN EMPLOYEE IS SUBJECT TO A MANDATORY OR PRECAUTIONARY ORDER
OF MEDICALLY-NECESSARY QUARANTINE OR ISOLATION ISSUED BY THE DEPARTMENT
OF HEALTH; OR (II) TO PROVIDE CARE FOR A MINOR DEPENDENT CHILD OF THE
EMPLOYEE WHO IS SUBJECT TO A MANDATORY OR PRECAUTIONARY ORDER OF MEDI-
CALLY-NECESSARY QUARANTINE OR ISOLATION ISSUED BY THE DEPARTMENT OF
HEALTH.
(C) "MANDATORY OR PRECAUTIONARY ORDER OF MEDICALLY-NECESSARY QUARAN-
TINE OR ISOLATION" SHALL MEAN A MANDATORY OR PRECAUTIONARY ORDER OF
QUARANTINE OR ISOLATION ISSUED BY THE DEPARTMENT OF HEALTH DUE TO AN
OUTBREAK OF CONTAGIOUS DISEASE.
(D) "RISK ADJUSTMENT POOL" SHALL MEAN THE PROCESS USED TO STABILIZE
MEMBER CLAIMS PURSUANT TO THIS SECTION IN ORDER TO PROTECT INSURERS FROM
DISPROPORTIONATE ADVERSE RISKS.
3. UPON RETURN TO WORK FOLLOWING LEAVE TAKEN PURSUANT TO THIS SECTION,
AN EMPLOYEE SHALL BE RESTORED BY HIS OR HER EMPLOYER TO THE POSITION OF
EMPLOYMENT HELD BY THE EMPLOYEE PRIOR TO ANY LEAVE TAKEN PURSUANT TO
THIS SECTION WITH THE SAME PAY AND OTHER TERMS AND CONDITIONS OF EMPLOY-
MENT. NO EMPLOYER OR HIS OR HER AGENT, OR THE OFFICER OR AGENT OF ANY
CORPORATION, PARTNERSHIP, OR LIMITED LIABILITY COMPANY, OR ANY OTHER
PERSON, SHALL DISCHARGE, THREATEN, PENALIZE, OR IN ANY OTHER MANNER
DISCRIMINATE OR RETALIATE AGAINST ANY EMPLOYEE BECAUSE SUCH EMPLOYEE HAS
TAKEN LEAVE PURSUANT TO THIS SECTION.
4. THE COMMISSIONER OF THE DEPARTMENT OF LABOR SHALL HAVE AUTHORITY TO
ADOPT REGULATIONS, INCLUDING EMERGENCY REGULATIONS, AND ISSUE GUIDANCE
TO EFFECTUATE ANY OF THE PROVISIONS OF THIS SECTION. EMPLOYERS SHALL
COMPLY WITH REGULATIONS PROMULGATED BY THE COMMISSIONER OF THE DEPART-
MENT OF LABOR FOR THIS PURPOSE, WHICH MAY INCLUDE, BUT IS NOT LIMITED
TO, STANDARDS FOR THE USE, PAYMENT, AND EMPLOYEE ELIGIBILITY OF SICK
LEAVE PURSUANT TO THIS SECTION.
5. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AND FOR PURPOSES OF
THIS SECTION:
(A) DISABILITY AND FAMILY LEAVE BENEFITS PURSUANT TO THIS SECTION MAY
BE PAYABLE CONCURRENTLY TO AN ELIGIBLE EMPLOYEE UPON THE FIRST FULL DAY
OF AN UNPAID PERIOD OF MANDATORY OR PRECAUTIONARY ORDER OF MEDICALLY-NE-
CESSARY QUARANTINE OR ISOLATION ISSUED BY THE DEPARTMENT OF HEALTH.
(B) THE MAXIMUM WEEKLY BENEFIT WHICH THE EMPLOYEE IS ENTITLED TO
RECEIVE FOR BENEFITS DUE TO DISABILITY PURSUANT TO THIS SECTION ONLY
SHALL BE THE DIFFERENCE BETWEEN THE MAXIMUM WEEKLY FAMILY LEAVE BENEFIT
AND SUCH EMPLOYEE'S TOTAL AVERAGE WEEKLY WAGE FROM EACH COVERED EMPLOY-
ER.
6. NOTWITHSTANDING SUBDIVISION ONE OF SECTION TWO HUNDRED FOUR OF THIS
ARTICLE, DISABILITY BENEFITS PAYABLE PURSUANT TO THIS SECTION SHALL BE
PAYABLE ON THE FIRST DAY OF DISABILITY.
7. A MANDATORY OR PRECAUTIONARY ORDER OF QUARANTINE OR ISOLATION
ISSUED BY THE DEPARTMENT OF HEALTH SHALL BE SUFFICIENT PROOF OF DISABIL-
ITY OR PROOF OF NEED FOR FAMILY LEAVE TAKEN PURSUANT TO THIS SECTION.
8. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IN CASES WHERE AN
EMPLOYEE IS DEEMED ASYMPTOMATIC OR HAS NOT YET BEEN DIAGNOSED WITH ANY
MEDICAL CONDITION AND IS PHYSICALLY ABLE TO WORK WHILE UNDER A MANDATORY
OR PRECAUTIONARY ORDER OF MEDICALLY-NECESSARY QUARANTINE OR ISOLATION,
WHETHER THROUGH REMOTE ACCESS OR OTHER SIMILAR MEANS.
A. 8201 3
9. NOTHING IN THIS SECTION SHALL BE DEEMED TO IMPEDE, INFRINGE, DIMIN-
ISH OR IMPAIR THE RIGHTS OF A PUBLIC EMPLOYEE OR EMPLOYER UNDER ANY LAW,
RULE, REGULATION OR COLLECTIVELY NEGOTIATED AGREEMENT, OR THE RIGHTS AND
BENEFITS WHICH ACCRUE TO EMPLOYEES THROUGH COLLECTIVE BARGAINING AGREE-
MENTS, OR OTHERWISE DIMINISH THE INTEGRITY OF THE EXISTING COLLECTIVE
BARGAINING RELATIONSHIP, OR TO PROHIBIT ANY PERSONNEL ACTION WHICH
OTHERWISE WOULD HAVE BEEN TAKEN REGARDLESS OF ANY REQUEST TO USE, OR
UTILIZATION OF, ANY LEAVE PROVIDED BY THIS SECTION.
10. (A) NOTWITHSTANDING ANY INCONSISTENT PROVISION OF LAW, WITHIN ONE
HUNDRED EIGHTY DAYS OF THE EFFECTIVE DATE OF THIS SECTION, THE SUPER-
INTENDENT OF FINANCIAL SERVICES, IN CONSULTATION WITH THE DIRECTOR AND
THE CHAIRMAN, SHALL PROMULGATE REGULATIONS NECESSARY FOR THE IMPLEMENTA-
TION OF A RISK ADJUSTMENT POOL TO BE ADMINISTERED DIRECTLY BY THE SUPER-
INTENDENT OF FINANCIAL SERVICES, IN CONSULTATION WITH THE DIRECTOR AND
THE CHAIRMAN.
(B) DISPROPORTIONATE LOSSES OF ANY MEMBERS OF THE RISK ADJUSTMENT POOL
IN EXCESS OF THRESHOLD LIMITS ESTABLISHED BY THE SUPERINTENDENT OF
FINANCIAL SERVICES MAY BE SUPPORTED, IF REQUIRED BY THE SUPERINTENDENT
OF FINANCIAL SERVICES, BY OTHER MEMBERS OF SUCH POOL INCLUDING THE STATE
INSURANCE FUND IN A PROPORTION TO BE DETERMINED BY THE SUPERINTENDENT OF
FINANCIAL SERVICES. ANY SUCH SUPPORT PROVIDED BY MEMBERS OF THE POOL
SHALL BE FULLY REPAID, INCLUDING REASONABLE INTEREST, THROUGH A MECH-
ANISM AND PERIOD OF TIME TO BE DETERMINED BY THE SUPERINTENDENT OF
FINANCIAL SERVICES.
11. (A) THE SUPERINTENDENT OF FINANCIAL SERVICES, IN CONSULTATION WITH
THE DIRECTOR AND THE CHAIRMAN, SHALL ISSUE TWO REPORTS ASSESSING THE
RISK ADJUSTMENT POOL REQUIRED BY SUBDIVISION TEN OF THIS SECTION.
(B) WITHIN TWO YEARS AFTER THE EFFECTIVE DATE OF THIS SECTION, AN
INITIAL REPORT SHALL BE PROVIDED TO THE SPEAKER OF THE ASSEMBLY, THE
CHAIR OF THE ASSEMBLY WAYS AND MEANS COMMITTEE AND THE CHAIR OF THE
ASSEMBLY LABOR COMMITTEE, THE TEMPORARY PRESIDENT OF THE SENATE, THE
CHAIR OF THE SENATE FINANCE COMMITTEE, AND THE CHAIR OF THE SENATE LABOR
COMMITTEE. SUCH REPORT SHALL INCLUDE: THE TOTAL NUMBER OF CLAIMS FILED
PURSUANT TO THIS SECTION FOR (I) FAMILY LEAVE BENEFITS, AND (II) BENE-
FITS DUE TO DISABILITY, AS A RESULT OF A MANDATORY OR PRECAUTIONARY
ORDER OF MEDICALLY-NECESSARY QUARANTINE OR ISOLATION; THE AGGREGATE
AMOUNT OF PAID FAMILY LEAVE CLAIMS AND DISABILITY CLAIMS; THE TOTAL
AMOUNT OF THE CLAIMS PAID FOR OUT OF THE RISK ADJUSTMENT POOL IMPLE-
MENTED PURSUANT TO SUBDIVISION TEN OF THIS SECTION; THE THRESHOLD LIMITS
ESTABLISHED BY THE DEPARTMENT OF FINANCIAL SERVICES; AND ANY OTHER
INFORMATION THE SUPERINTENDENT OF FINANCIAL SERVICES DEEMS NECESSARY TO
PROVIDE TO THE LEGISLATURE.
(C) WITHIN FIVE YEARS AFTER THE EFFECTIVE DATE OF THIS SECTION, A
FINAL REPORT SHALL BE PROVIDED TO THE SPEAKER OF THE ASSEMBLY, THE CHAIR
OF THE ASSEMBLY WAYS AND MEANS COMMITTEE AND THE CHAIR OF THE ASSEMBLY
LABOR COMMITTEE, THE TEMPORARY PRESIDENT OF THE SENATE, THE CHAIR OF THE
SENATE FINANCE COMMITTEE, AND THE CHAIR OF THE SENATE LABOR COMMITTEE.
SUCH REPORT SHALL INCLUDE: THE BALANCE OF THE RISK ADJUSTMENT POOL
IMPLEMENTED PURSUANT TO SUBDIVISION TEN OF THIS SECTION, IF ANY; THE
TOTAL AMOUNT COLLECTED THROUGH THE REPAYMENT MECHANISM ESTABLISHED BY
THE DEPARTMENT OF FINANCIAL SERVICES, INCLUDING INTEREST; AND ANY OTHER
INFORMATION THE SUPERINTENDENT OF FINANCIAL SERVICES DEEMS NECESSARY TO
PROVIDE TO THE LEGISLATURE. IF THERE EXISTS A BALANCE IN THE RISK
ADJUSTMENT POOL, THE FINAL REPORT SHALL PROVIDE A TIMELINE BY WHICH
REPAYMENT WILL BE COMPLETED.
A. 8201 4
12. IF AT ANY POINT WHILE THIS SECTION SHALL BE IN EFFECT THE FEDERAL
GOVERNMENT BY LAW OR REGULATION PROVIDES SICK LEAVE AND/OR EMPLOYEE
BENEFITS FOR EMPLOYEES RELATED TO OUTBREAKS OF CONTAGIOUS DISEASE, THEN
THE PROVISIONS OF THIS SECTION, INCLUDING, BUT NOT LIMITED TO, PAID SICK
LEAVE, PAID FAMILY LEAVE, AND BENEFITS DUE TO DISABILITY, SHALL NOT BE
AVAILABLE TO ANY EMPLOYEE OTHERWISE SUBJECT TO THE PROVISIONS OF THIS
SECTION; PROVIDED, HOWEVER, THAT IF THE PROVISIONS OF THIS SECTION WOULD
HAVE PROVIDED SICK LEAVE AND/OR EMPLOYEE BENEFITS IN EXCESS OF THE BENE-
FITS PROVIDED BY THE FEDERAL GOVERNMENT BY LAW OR REGULATION, THEN SUCH
EMPLOYEE SHALL BE ABLE TO CLAIM SUCH ADDITIONAL SICK LEAVE AND/OR
EMPLOYEE BENEFITS PURSUANT TO THE PROVISIONS OF THIS SECTION IN AN
AMOUNT THAT SHALL BE THE DIFFERENCE BETWEEN THE BENEFITS AVAILABLE UNDER
THIS SECTION AND THE BENEFITS AVAILABLE TO SUCH EMPLOYEE, IF ANY, AS
PROVIDED BY SUCH FEDERAL LAW OR REGULATION.
§ 2. This act shall take effect on the sixtieth day after it shall
have become a law. Effective immediately, the addition, amendment and/or
repeal of any rule or regulation necessary for the implementation of
this act on its effective date are authorized to be made and completed
on or before such effective date.