STATE OF NEW YORK ________________________________________________________________________ 8380 IN SENATE 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: 1 Section 1. Subdivision 15 of section 201 of the workers' compensation 2 law, as added by section 2 of part SS of chapter 54 of the laws of 2016, 3 is amended to read as follows: 4 15. "Family leave" shall mean any leave taken by an employee from 5 work: (a) to participate in providing care, including physical or 6 psychological care, for a family member of the employee made necessary 7 by a serious health condition of the family member including bereavement 8 upon the death of such family member; or (b) to bond with the employee's 9 child during the first twelve months after the child's birth, or the 10 first twelve months after the placement of the child for adoption or 11 foster care with the employee; or (c) because of any qualifying exigency 12 as interpreted under the family and medical leave act, 29 U.S.C.S § 13 2612(a)(1)(e) and 29 C.F.R. S.825.126(a)(1)-(8), arising out of the fact 14 that the spouse, domestic partner, child, or parent of the employee is 15 on active duty (or has been notified of an impending call or order to 16 active duty) in the armed forces of the United States; or (d) leave 17 taken for the purposes of bereavement due to the death of a family 18 member. 19 § 2. Paragraph (a) of subdivision 2 of section 204 of the workers' 20 compensation law, as added by section 5 of part SS of chapter 54 of the 21 laws of 2016, is amended to read as follows: 22 (a) The weekly benefit for family leave that occurs (i) on or after 23 January first, two thousand eighteen shall not exceed eight weeks during 24 any fifty-two week calendar period and shall be fifty percent of the 25 employee's average weekly wage but shall not exceed fifty percent of the 26 state average weekly wage, (ii) on or after January first, two thousand 27 nineteen shall not exceed ten weeks during any fifty-two week calendar 28 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 1 wage but shall not exceed fifty-five percent of the state average weekly 2 wage, (iii) on or after January first, two thousand twenty shall not 3 exceed ten weeks during any fifty-two week calendar period, not includ- 4 ing family leave due to bereavement, and shall be sixty percent of the 5 employee's average weekly wage but shall not exceed sixty percent of the 6 state average weekly wage, and (iv) on or after January first of each 7 succeeding year, shall not exceed twelve weeks during any fifty-two week 8 calendar period, not including family leave due to bereavement, and 9 shall be sixty-seven percent of the employee's average weekly wage but 10 shall not exceed sixty-seven percent of the New York state average week- 11 ly wage in effect. On or after January first, two thousand twenty 12 claimants who are eligible for family leave due to bereavement shall 13 receive up to two weeks of family leave for bereavement during any 14 fifty-two week calendar period and shall be sixty percent of the employ- 15 ee's average weekly wage but shall not exceed sixty percent of the state 16 average weekly wage, on or after January first, two thousand twenty-one 17 claimants who are eligible for family leave due to bereavement shall 18 receive up to four weeks of family leave for bereavement during any 19 fifty-two week calendar period and shall be sixty-seven percent of the 20 employee's average weekly wage but shall not exceed sixty-seven percent 21 of the state average weekly wage, on or after January first of each 22 succeeding year, claimants who are eligible for family leave due to 23 bereavement shall receive up to six weeks of family leave for bereave- 24 ment during any fifty-two week calendar period and shall be sixty-seven 25 percent of the employee's average weekly wage but shall not exceed 26 sixty-seven percent of the state average weekly wage in effect each 27 year. The superintendent of financial services shall have discretion to 28 delay the increases in the family leave benefit level provided in 29 subparagraphs (ii), (iii), and (iv) of this paragraph by one or more 30 calendar years. In determining whether to delay the increase in the 31 family leave benefit for any year, the superintendent of financial 32 services shall consider: (1) the current cost to employees of the family 33 leave benefit and any expected change in the cost after the benefit 34 increase; (2) the current number of insurers issuing insurance policies 35 with a family leave benefit and any expected change in the number of 36 insurers issuing such policies after the benefit increase; (3) the 37 impact of the benefit increase on employers' business and the overall 38 stability of the program to the extent that information is readily 39 available; (4) the impact of the benefit increase on the financial 40 stability of the disability and family leave insurance market and carri- 41 ers; and (5) any additional factors that the superintendent of financial 42 services deems relevant. If the superintendent of financial services 43 delays the increase in the family leave benefit level for one or more 44 calendar years, the family leave benefit level that shall take effect 45 immediately following the delay shall be the same benefit level that 46 would have taken effect but for the delay. The weekly benefits for fami- 47 ly leave that occurs on or after January first, two thousand eighteen 48 shall not be less than one hundred dollars per week except that if the 49 employee's wages at the time of family leave are less than one hundred 50 dollars per week, the employee shall receive his or her full wages. 51 Benefits may be payable to employees for paid family leave taken inter- 52 mittently or for less than a full work week in increments of one full 53 day or one fifth of the weekly benefit. 54 § 3. Paragraphs (a) and (b) of subdivision 2 of section 205 of the 55 workers' compensation law, as added by section 6 of part SS of chapter 56 54 of the laws of 2016, are amended to read as follows:

S. 8380 3 1 (a) For more than [~~twelve weeks, or~~] the maximum duration permitted as 2 set forth in paragraph (a) of subdivision two of section two hundred 3 four of this article, during a period of fifty-two consecutive calendar 4 weeks, or for any period in which the family leave combined with the 5 disability benefits previously paid exceeds twenty-six weeks during the 6 same fifty-two consecutive calendar weeks plus any family leave due to 7 bereavement; 8 (b) For any period of family leave wherein the notice and medical 9 certification, or death certificate, as prescribed by the chair has not 10 been filed. At the discretion of the chair or chair's designee pursuant 11 to section two hundred twenty-one of this article, the family member who 12 is the recipient of care may be required to submit to a physical exam- 13 ination by a qualified health care provider unless such family member is 14 unable to be examined due to death. Such examination shall be paid for 15 by the carrier; and 16 § 4. Subdivision 5 of section 205 of the workers' compensation law, as 17 added by section 6 of part SS of chapter 54 of the laws of 2016, is 18 amended to read as follows: 19 5. In any case in which the necessity for family leave is foreseeable 20 based on an expected birth or placement, the employee shall provide the 21 employer with not less than thirty days notice before the date the leave 22 is to begin, of the employee's intention to take family leave under this 23 article, except that if the date of the birth or placement requires 24 leave to begin in less than thirty days, the employee shall provide such 25 notice as is practicable. In any case in which the necessity for family 26 leave is foreseeable based on planned medical treatment, the employee 27 shall provide the employer with not less than thirty days notice, before 28 the date the leave is to begin, of the employees intention to take fami- 29 ly leave under this article, except that if the date of the treatment 30 requires leave to begin in less than thirty days, the employee shall 31 provide such notice as is practicable. In the case of family leave due 32 to bereavement notice shall be provided as soon as practicable. 33 § 5. Subdivision 1 of section 217 of the workers' compensation law, as 34 amended by section 16 of part SS of chapter 54 of the laws of 2016, is 35 amended to read as follows: 36 1. Written notice and proof of disability or proof of need for family 37 leave shall be furnished to the employer by or on behalf of the employee 38 claiming benefits or, in the case of a claimant under section two 39 hundred seven of this article, to the chair, within thirty days after 40 commencement of the period of disability. Additional proof shall be 41 furnished thereafter from time to time as the employer or carrier or 42 chair may require but not more often than once each week. Such proof 43 shall include a statement of disability by the employee's attending 44 physician or attending podiatrist or attending chiropractor or attending 45 dentist or attending psychologist or attending certified nurse midwife 46 or family leave care recipient's health care provider, or in the case of 47 an employee who adheres to the faith or teachings of any church or 48 denomination, and who in accordance with its creed, tenets or principles 49 depends for healing upon prayer through spiritual means alone in the 50 practice of religion, by an accredited practitioner, containing facts 51 and opinions as to such disability in compliance with regulations of the 52 chair. In the event that the claimant is eligible for family leave due 53 to bereavement, a death certificate shall serve as proof of need of 54 leave. Failure to furnish notice or proof within the time and in the 55 manner above provided shall not invalidate the claim but no benefits 56 shall be required to be paid for any period more than two weeks prior to

S. 8380 4 1 the date on which the required proof is furnished unless it shall be 2 shown to the satisfaction of the chair not to have been reasonably 3 possible to furnish such notice or proof and that such notice or proof 4 was furnished as soon as possible; provided, however, that no benefits 5 shall be paid unless the required proof of disability is furnished with- 6 in the period of actual disability or family leave that does not exceed 7 the statutory maximum period permitted under section two hundred four of 8 this article. No limitation of time provided in this section shall run 9 as against any disabled employee who is mentally incompetent, or phys- 10 ically incapable of providing such notice as a result of a serious 11 medical condition, or a minor so long as such person has no guardian of 12 the person and/or property. 13 § 6. Subdivisions 3 and 4 of section 217 of the workers' compensation 14 law, as amended by section 16 of part SS of chapter 54 of the laws of 15 2016, are amended to read as follows: 16 3. The chair or chair's designee, pursuant to section two hundred 17 twenty-one of this article, may direct the claimant or family leave care 18 recipient to submit to examination by a health care provider designated 19 by him or her in any case in which the claim to disability or family 20 leave benefits is contested and in claims arising under section two 21 hundred seven of this article, and in other cases as the chair or board 22 may require. In the event that the family member or the family leave 23 care recipient is unable to be examined due to death, this section shall 24 not apply. 25 4. Refusal of the claimant or family leave care recipient without good 26 cause to submit to any such examination shall disqualify the claimant or 27 employee from all benefits hereunder for the period of such refusal, 28 except as to benefits already paid. In the event that the family member 29 or family leave care recipient is unable to be examined due to death, 30 this section shall not apply. 31 § 7. This act shall take effect immediately and shall apply to all 32 policies or contracts issued, renewed, modified, altered or amended on 33 or after January 1, 2020.

Authorizes paid family leave for bereavement

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