S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4259
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 7, 2023
                                ___________
 
 Introduced  by  Sen.  ASHBY  -- 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 for fetal death, still birth, and  an  infant
   being medically not viable to survive

   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; 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 quali-
 fying 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 FETAL DEATH OR
 STILL BIRTH OF AN INFANT BORN TO THE EMPLOYEE OR THE EMPLOYEE'S  SPOUSE,
 OR  DUE  TO THE EMPLOYEE'S INFANT BEING DECLARED MEDICALLY NOT VIABLE TO
 SURVIVE BIRTH BY A PHYSICIAN LICENSED UNDER ARTICLE ONE HUNDRED  THIRTY-
 ONE OF THE EDUCATION LAW.
   §  2.  Paragraph  (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, is amended to read as follows:

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06258-01-3
 S. 4259                             2
              

 
   (b)  For  any  period  of  family leave wherein the notice and medical
 certification, FETAL DEATH CERTIFICATE, CERTIFICATE OF  STILL  BIRTH  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 recipi-
 ent  of  care  may  be required to submit to a physical examination by a
 qualified health care provider UNLESS SUCH FAMILY MEMBER IS UNABLE TO BE
 EXAMINED DUE TO DEATH, FETAL DEATH, OR  STILL  BIRTH.  Such  examination
 shall be paid for by the carrier; and
   § 3. 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.
   § 4. Subdivisions 1, 3 and 4 of section 217 of  the  workers'  compen-
 sation  law,  as  amended  by section 16 of part SS of chapter 54 of the
 laws of 2016, are 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 FETAL DEATH CERTIFICATE, CERTIFICATE OF  STILL  BIRTH,
 OR  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 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  possi-
 ble;  provided,  however,  that  no  benefits  shall  be paid unless the
 required proof of disability is furnished within the  period  of  actual
 S. 4259                             3
 
 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 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.
   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,  FETAL  DEATH,  OR
 STILL BIRTH, 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,
 FETAL DEATH, OR STILL BIRTH, THIS SECTION SHALL NOT APPLY.
   § 5. 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, 2024.