Relates to temporary disability benefits and provides benefit for family care

Section 2 of the bill amends the definition of "day of disability" in WCL § 201 to add definitions for "family leave.

Section 3 of the bill adds paragraph 15 through 23 to WCL §201 to add definitions for 'family leave, "child," "domestic partner," "serious health condition, " "parent," "family member," "in loco parentis," "grandchild" "health care provider," and "family care cost." "Family leave" is defined to mean any leave from work necessary to care for a seriously ill family member, or to bond with a child during his or her first twelve months. A "family member" is defined to mean a child, spouse, domestic partner, parent or grandchild.

Section 4 of the bill amends subdivision 6 of section 201 of the workers' compensation law by adding new paragraph E specifying all benefits paid for family leave shall be paid in the same manner as the temporary disability benefits.

Section 5 amends section 203 of the worker's compensation law, as amended by chapter 436 of the laws of 1986 to provide that employees claiming benefits for paid family leave are eligible in the same manner as employees of a covered employer claiming benefits for disability.

Section 6 amends the workers' compensation law adding 203-A guaranteeing every covered employee utilizing paid family leave same or similar job back.

Section 7 amends section 204 of the workers' compensation law, as added by chapter 600 of the laws of 1949 and subdivision 2 as amended by chapter 38 of the laws of 1989 to add days of disability for family care shall commence at the start of the leave period taken by the employee to provide family care.

Subdivision 2 provides the weekly benefit which the disabled worker is entitled to receive shall increase in 3 steps annually starting on October 1st 2009 to reach an amount equal to fifty percent of the average weekly wage and thereafter that the weekly benefit shall be adjusted annually to fifty percent of the average weekly wage as determined by the Labor Department.

Subdivision 3 provides that the employee utilizing paid family leave shall have the benefit computed in the same manner as the disability benefit payable pursuant to subdivision one and two of this section and shall be computed at the same time and in the same manner as any subsequent adjustments to the disability benefit provided in section.

Section 8 Subdivisions 1,2,3,4,7 and 8 of section 205 of the workers' compensation law, subdivision 1 as amended by chapter 65 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:

Section 8 of the bill amends WCL § 205 to make clear which of its provisions apply to disability for sickness and injury, and which to family leave, and to set distinct periods for receipt of disability benefits: twenty-six weeks for sickness and injury, and 13 weeks for family leave. It also states that no benefit under this article may be taken for the time an employee is absent from work for disciplinary reasons, and that no family care benefit may be taken when the employee is absent for personal sickness or injury.

Section 9 of the bill adds a new section 205-a to the WCL to make clear that receipt of disability benefits for sickness or injury does not affect the time limitations for family leave, and receipt of disability benefits for family leave does not affect the time limitations for receipt of benefits for sickness or injury.

Section 10. Section 209 of the workers' compensation law is amended to provide the employee contribution to the cost of family leave shall be calculated in the same manner and in the same amount of the continuation described in subdivision three of this section.

Section 11 of the bill amends WCL § 211 to make clear that the family care benefits provided for in this bill do not affect or alter existing rights under collective bargaining agreements, and that employers may secure benefits for disability arising from injury or sickness, and for family care, from different sources or through different means.

Section 12 of the bill amends the WCL to create a new section 211-a to allow public employees to opt in to the family care benefit through their representative organizations. The section sets forth specific times when such organizations may opt in or out, including three months prior to the effective date of the bill; upon three months notice where the employer does not already participate in the statutory disability program; and at any mutually agreeable time. When an employee organization opts into the benefit on behalf of its members, the employer may require the employees to pay the family care costs, unless there is a collectively negotiated agreement otherwise.

Section 13 of the bill amends WCL § 212 to make clear that when a public employer opts into benefits under this article, it may do so as to disability, family leave or both.

Section 14 of the bill amends WCL § 76 to allow the State Insurance Fund to provide insurance for family care benefits, either together with or separate from disability insurance.

Section 15 provides that in the case of disability resulting from sickness or injury, a statement of disability by the employee's attending health care provider may be required by the employer, carrier or chair no more than one a week. In the case of family care for bonding with a new child, a birth certificate, certificate of adoption, or other competent evidence showing 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; in the case of benefits for care of a family member with a serious condition a statement by the family member's health care provider, and a statement subscribed by the employee and affirmed by him or her as true under penalty of perjury that the employee is primary care giver for the family member during disability.

Section 16 of the bill amends WCL § 221 to make clear in regard to contested claims that certain proofs of disability applicable to cases of sickness or injury must be submitted only when relevant.

Section 17 of the bill amends WCL § 229 (2) to require employers to provide each employee with notice regarding disability benefits, in a form prescribed by the chair of the Workers' Compensation Board, within thirty days of the section's effective date, and thirty days of any new employee's initial day of work.

Section 18 of the bill adds a new section 239-a to the WCL. This section provides for the creation of a thirteen member family care advisory council, which will issue reports on various issues relating to the family care benefit.

Section 19 provides that section 1113 of the insurance law is amended to include any insurance under that article for family care benefits, disability benefits resulting from sickness or injury, or both as accident and health insurance.

Section 20 Effective date

Justification

The weekly benefit for temporary disability insurance has not been raised in 20 years. This bill raises the benefit to one half of the average weekly wage, as calculated by the Department of Labor and indexes the benefit thereafter. Temporary disability insurance provides income maintenance for illness or injury occurring during the course of non working hours.

In addition to the above adjustment the paid family leave program is expanded to cover leave for child care, adoption, foster-care, and care for enumerated sick family members. The benefit provided equals that of temporary disability and is calculated in the same manner and at the same time as temporary disability. The duration of the benefit, 13 weeks, is half that of temporary disability. All workers covered for temporary disability are covered for paid family leave. All public employees not currently covered may opt for coverage through available collective bargaining mechanisms. Public employees may also opt out in a similar manner. Public employees may be required to contribute to the cost of the benefit in the same manner as is provided for all other covered employees in the law.

Prior legislative history

2008: S.8428 Referred to Rules

Fiscal implication

The premium collected for the Temporary Disability Insurance has built up large reserves over the last twenty years, and it is anticipated that the first year cost of an increase will be minimal. The paid family leave benefit has not been rated yet, but preliminary estimates suggest that the benefit will cost no more than the current TDI benefit, and probably a lot less if other states' experience is taken into account.

Effective date

This act shall take effect October 1, 2009; provided, however, that: (a) paragraph a of subdivision 3 of section 211-a of the workers' compensation law, as added by section twelve of this act allowing public employees to opt in to family care benefits prior to July 1, 2010, shall take effect immediately; and (b) effective immediately, the addition, amendment and/or repeal of any rules or regulations necessary for the implementation of this act and any administrative steps necessary authorized and directed to be made and completed on or before such effective date.