Provides workers' comp benefits for family care

Section 2 of the bill amends the definition of "day of disability" in WCL § 201(14) to include days taken for family leave.

Section 3 of the bill adds paragraphs 15 through 24 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. "Family care cost," the amount that may be passed on to employees for the cost of the family care benefit, is defined to be forty-five cents until, July 1, 2011, and thereafter an amount set by the Superintendent of Insurance on an annual basis in accordance with strictures set forth in the bill.

Section 4 of the bill amends WCL § 204 to set the commencement date for a period of family leave as the start of the leave period taken by the employee.

Section 5 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 twelve weeks for family leave. It also states that no benefits 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 6 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 7 of the bill amends WCL § 209(3) to raise the amount of weekly disability costs that an employer can pass on to an employee from sixty cents to sixty cents plus the "family care cost," as defined in WCL § 201(24).

Section 8 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 9 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 cost, unless there is a collectively negotiated agreement otherwise.

Section 10 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 11 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 12 of the bill amends WCL § 217 to set forth the requirements for proof of disability in cases of family leave, and to require that where an employee receives disability benefits for time spent caring for a sick relative, the relative must subject himself or herself to a medical examination in certain circumstances.

Section 13 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 14 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 15 of the bill adds a new section 239-a to the WCL requiring the Department of Insurance to study, and report to the Governor and both houses of Legislature by April 1, 2010, on the feasibility and impact of community rating disability insurance. This section also provides for the creation of a fifteen member family care advisory council, which will consult with the Superintendent of Insurance and issue reports on various issues relating to the family care benefit.

Section 16 of the bill amends Insurance law subsection 1113(a) to include family care benefits and disability benefits from sickness or injury within "accident and health insurance," or insurance against death or personal injury.

Section 17 of the bill provides the effective date.

Existing law

Sections 200 through 242 of the WCL require employers to provide for the payment of disability benefits of up to $170 per week when an employee is absent from work due to sickness or injury unrelated to his or her work. Disability is defined to include pregnancy, but not any form of family leave unrelated to the employee's own sickness or injury.

Statement in support

Many families today experience a fierce struggle as they attempt to balance the need to earn a living with the need to care for their children and seriously ill family members. Often economic necessity forces parents to return to work very shortly after a child is born or adopted. Although the federal Family and Medical Leave Act (FMLA) guarantees twelve weeks of unpaid leave to covered workers, a national study found that 77% of those who did not take needed leave under FMLA refrained from doing so because they could not afford the unpaid time.

With the increase in recent decades of women in the workforce, of dual earner households, and of households headed by single patents, often the only potential caretaker for a new child or sick family member is an individual who is employed outside of the home. Paid family care benefits will allow those individuals to remain in the workforce even as they shoulder their family responsibilities. In addition, because people are living longer, workers are increasingly finding it necessary to take time off work to care for elderly parents or seriously ill loved ones. For many families, medical emergencies lead to financial ruin, resulting not only from medical bills but also from lack of income. Allowing caretakers to receive a modest income during a limited time away from work would help forestall such financial distress.

When parents are unable to take leave after a child's birth, the consequence is not only disruption for the family but potential damage to the child's development, since research on child development shows the important role of early bonding with parents. Thus, paid family care benefits are a cornerstone of an effective birth-to-five education agenda, and policies that allow parents a reasonable payment for time off taken after a birth, adoption, or foster care placement affect not only the workers who are able to take leave but also the rest of New York's residents, who have a stake in a healthy next generation. This bill seeks to address these problems by creating a paid family care program. Under the provision of the bill, workers can receive a modest cash benefit for twelve weeks while they are on leave to bond with a newborn, newly adopted child, or newly placed foster child; or to care for a seriously ill parent, child, spouse, domestic partner, grandchild or parent-in-law. Domestic partners are included in recognition of their important role in the furtherance of caring, committed family relationships, and grandchildren are included in recognition of the many families in which grandparents are the primary caretakers of their grandchildren.

The bill structures the paid family leave program within the existing Temporary Disability Insurance (TDI) program administered by the Workers' Compensation Board.

There are a number of benefits to using the existing TDI system.

First, an administrative agency and process for administering the program already exist, and many of its elements are already established, such as eligibility requirements, waiting periods, penalties, and anti-fraud protections. Beneficiaries of the paid family leave program, like the current beneficiaries of TDI, will be required: (a) to be employed with a covered employer for four weeks prior to the date of disability; and (b) to wait seven days before receiving benefits.

Second, employers will not need to adjust to a new program, but will simply augment their existing coverage for disability to include family leave. Like TDI, the bill covers virtually all private employers, and approximately half of local public employers (those that have already opted in to TDI). TDI itself confers no job protection for employees who miss work because of a qualified disability. Only employees covered by FMLA or other leave program would have job protection under this bill.

Third, the cost of providing TDI can be shared between employers and employees. At present, employers may deduct a maximum of 60 cents per week from employees, or $31.20 per year. In practice, not all employers take the 60 cent weekly payroll deduction. The bill would allow for the lifting of the current 60 cent cap on the employee contribution, and allow employers to pass on to employees an additional amount equal to the average cost of providing coverage for family care. For the first year, that amount will be set at 45 cents per week, an amount estimated to be sufficient to cover the average increase per employee in the cost of TDI insurance resulting from the family care benefit. Thereafter, the amount will be set by the Superintendent of Insurance based on a sound actuarial calculation of the average cost of providing the benefit.

Fourth, the TDI system does not require extensive government intervention. Most cases are resolved through the employer, employee and insurer, without any government involvement. Many other developed nations have some form of paid leave, and this proposal is one of many pending nationwide to provide families with greater support during the crucial moments of the lives of their newborn children or their seriously ill family members. In 2002, California created the nation's first paid family leave program, and Washington has now enacted a similar proposal. With this bill, New York can move to the forefront of this effort to support working families by increasing their ability to spend time on crucial family matters, and providing them with a means of support during that time.

Legislative history

New bill.

Budget implications

The bill does require coverage for state employees, and all private benefits are funded either by employers (either through self-insurance or a policy purchased from a carrier or the State Insurance Fund) or by employees. Either the State or public employee unions covering state workers may opt into the benefit, which could entail cost if the option was exercised, and depending on whether any negotiated limits were placed on the pass through to employees. The bill will also require modest additional administrative expenses for such increased operation of the Workers' Compensation Board as is needed to administer the new benefits.

Effective date

This bill takes effect on July 1, 2010.