STATE OF NEW YORK
________________________________________________________________________
3737
2023-2024 Regular Sessions
IN ASSEMBLY
February 7, 2023
___________
Introduced by M. of A. BENDETT -- read once and referred to the Commit-
tee 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:
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; or (b) to bond with
8 the employee's child during the first twelve months after the child's
9 birth, or the first twelve months after the placement of the child for
10 adoption or foster care with the employee; or (c) because of any quali-
11 fying exigency as interpreted under the family and medical leave act, 29
12 U.S.C.S § 2612(a)(1)(e) and 29 C.F.R. S.825.126(a)(1)-(8), arising out
13 of the fact that the spouse, domestic partner, child, or parent of the
14 employee is on active duty (or has been notified of an impending call or
15 order to active duty) in the armed forces of the United States; or (d)
16 leave taken for the purposes of bereavement due to the fetal death or
17 still birth of an infant born to the employee or the employee's spouse,
18 or due to the employee's infant being declared medically not viable to
19 survive birth by a physician licensed under article one hundred thirty-
20 one of the education law.
21 § 2. Paragraph (b) of subdivision 2 of section 205 of the workers'
22 compensation law, as added by section 6 of part SS of chapter 54 of the
23 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
A. 3737 2
1 (b) For any period of family leave wherein the notice and medical
2 certification, fetal death certificate, certificate of still birth or
3 death certificate, as prescribed by the chair has not been filed. At the
4 discretion of the chair or chair's designee pursuant to section two
5 hundred twenty-one of this article, the family member who is the recipi-
6 ent of care may be required to submit to a physical examination by a
7 qualified health care provider unless such family member is unable to be
8 examined due to death, fetal death, or still birth. Such examination
9 shall be paid for by the carrier; and
10 § 3. Subdivision 5 of section 205 of the workers' compensation law, as
11 added by section 6 of part SS of chapter 54 of the laws of 2016, is
12 amended to read as follows:
13 5. In any case in which the necessity for family leave is foreseeable
14 based on an expected birth or placement, the employee shall provide the
15 employer with not less than thirty days notice before the date the leave
16 is to begin, of the employee's intention to take family leave under this
17 article, except that if the date of the birth or placement requires
18 leave to begin in less than thirty days, the employee shall provide such
19 notice as is practicable. In any case in which the necessity for family
20 leave is foreseeable based on planned medical treatment, the employee
21 shall provide the employer with not less than thirty days notice, before
22 the date the leave is to begin, of the employees intention to take fami-
23 ly leave under this article, except that if the date of the treatment
24 requires leave to begin in less than thirty days, the employee shall
25 provide such notice as is practicable. In the case of family leave due
26 to bereavement, notice shall be provided as soon as practicable.
27 § 4. Subdivisions 1, 3 and 4 of section 217 of the workers' compen-
28 sation law, as amended by section 16 of part SS of chapter 54 of the
29 laws of 2016, are amended to read as follows:
30 1. Written notice and proof of disability or proof of need for family
31 leave shall be furnished to the employer by or on behalf of the employee
32 claiming benefits or, in the case of a claimant under section two
33 hundred seven of this article, to the chair, within thirty days after
34 commencement of the period of disability. Additional proof shall be
35 furnished thereafter from time to time as the employer or carrier or
36 chair may require but not more often than once each week. Such proof
37 shall include a statement of disability by the employee's attending
38 physician or attending podiatrist or attending chiropractor or attending
39 dentist or attending psychologist or attending certified nurse midwife
40 or family leave care recipient's health care provider, or in the case of
41 an employee who adheres to the faith or teachings of any church or
42 denomination, and who in accordance with its creed, tenets or principles
43 depends for healing upon prayer through spiritual means alone in the
44 practice of religion, by an accredited practitioner, containing facts
45 and opinions as to such disability in compliance with regulations of the
46 chair. In the event that the claimant is eligible for family leave due
47 to bereavement, a fetal death certificate, certificate of still birth,
48 or death certificate shall serve as proof of need of leave. Failure to
49 furnish notice or proof within the time and in the manner above provided
50 shall not invalidate the claim but no benefits shall be required to be
51 paid for any period more than two weeks prior to the date on which the
52 required proof is furnished unless it shall be shown to the satisfaction
53 of the chair not to have been reasonably possible to furnish such notice
54 or proof and that such notice or proof was furnished as soon as possi-
55 ble; provided, however, that no benefits shall be paid unless the
56 required proof of disability is furnished within the period of actual
A. 3737 3
1 disability or family leave that does not exceed the statutory maximum
2 period permitted under section two hundred four of this article. No
3 limitation of time provided in this section shall run as against any
4 disabled employee who is mentally incompetent, or physically incapable
5 of providing such notice as a result of a serious medical condition, or
6 a minor so long as such person has no guardian of the person and/or
7 property.
8 3. The chair or chair's designee, pursuant to section two hundred
9 twenty-one of this article, may direct the claimant or family leave care
10 recipient to submit to examination by a health care provider designated
11 by him or her in any case in which the claim to disability or family
12 leave benefits is contested and in claims arising under section two
13 hundred seven of this article, and in other cases as the chair or board
14 may require. In the event that the family member or the family leave
15 care recipient is unable to be examined due to death, fetal death, or
16 still birth, this section shall not apply.
17 4. Refusal of the claimant or family leave care recipient without good
18 cause to submit to any such examination shall disqualify the claimant or
19 employee from all benefits hereunder for the period of such refusal,
20 except as to benefits already paid. In the event that the family member
21 or family leave care recipient is unable to be examined due to death,
22 fetal death, or still birth, this section shall not apply.
23 § 5. This act shall take effect immediately and shall apply to all
24 policies or contracts issued, renewed, modified, altered or amended on
25 or after January 1, 2024.
