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A10153 Summary:

BILL NOA10153
 
SAME ASSAME AS S08091
 
SPONSORNolan
 
COSPNSRCrespo, Heastie, Peoples-Stokes, Weinstein, Abbate, Aubry, Barrett, Blake, Buchwald, Burke, Buttenschon, Cahill, Carroll, Colton, Cook, Cruz, Darling, Davila, De La Rosa, DenDekker, Dinowitz, Englebright, Epstein, Fahy, Fernandez, Gantt, Glick, Gottfried, Griffin, Gunther, Hevesi, Jacobson, Jaffee, Jean-Pierre, Joyner, Kim, Lavine, Lentol, Lifton, Magnarelli, McMahon, Miller MG, Mosley, Niou, O'Donnell, Ortiz, Otis, Paulin, Pichardo, Pretlow, Quart, Ramos, Richardson, Rivera, Rodriguez, Rosenthal D, Rosenthal L, Rozic, Ryan, Sayegh, Seawright, Simon, Simotas, Solages, Steck, Stern, Stirpe, Taylor, Thiele, Vanel, Wallace, Weprin, Williams, Zebrowski, D'Urso, Fall, Bronson, Bichotte, Braunstein, Perry, DeStefano
 
MLTSPNSR
 
 
Provides provisions for certain employee benefits when such employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.
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A10153 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          10153
 
                   IN ASSEMBLY
 
                                     March 18, 2020
                                       ___________
 
        Introduced  by  M.  of  A. NOLAN, CRESPO, HEASTIE, PEOPLES-STOKES, WEIN-
          STEIN, ABBATE, AUBRY, BARRETT, BLAKE,  BUCHWALD,  BURKE,  BUTTENSCHON,
          CAHILL,  CARROLL,  COLTON,  COOK,  CRUZ,  DARLING, DAVILA, DE LA ROSA,
          DenDEKKER, DINOWITZ, ENGLEBRIGHT,  EPSTEIN,  FAHY,  FERNANDEZ,  GANTT,
          GLICK,   GOTTFRIED,   GRIFFIN,   GUNTHER,  HEVESI,  JACOBSON,  JAFFEE,
          JEAN-PIERRE, JOYNER, KIM, LAVINE, LENTOL, LIFTON, MAGNARELLI, McMAHON,
          M. G. MILLER, MOSLEY, NIOU, O'DONNELL, ORTIZ, OTIS, PAULIN,  PICHARDO,
          PRETLOW,  QUART,  RAMOS,  RICHARDSON, RIVERA, RODRIGUEZ, D. ROSENTHAL,
          L. ROSENTHAL, ROZIC, RYAN, SAYEGH, SEAWRIGHT, SIMON, SIMOTAS, SOLAGES,
          STECK,  STERN,  STIRPE,  TAYLOR,  THIELE,  VANEL,   WALLACE,   WEPRIN,
          WILLIAMS,  ZEBROWSKI,  D'URSO,  FALL,  BRONSON  --  (at request of the
          Governor) -- read once and referred to the Committee on Labor
 
        AN ACT providing requirements  for  sick  leave  and  the  provision  of
          certain employee benefits when such employee is subject to a mandatory
          or precautionary order of quarantine or isolation due to COVID-19
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. 1.(a) For employers with ten or fewer employees as of Janu-
     2  ary 1, 2020, each employee who is subject to a mandatory or  precaution-
     3  ary  order  of  quarantine or isolation issued by the state of New York,
     4  the department of health, local board of  health,  or  any  governmental
     5  entity  duly  authorized  to  issue such order due to COVID-19, shall be
     6  provided with unpaid sick leave until the termination of  any  mandatory
     7  or  precautionary  order  of quarantine or isolation due to COVID-19 and
     8  any other benefit as provided by any other provision of law.  During the
     9  period of mandatory or precautionary quarantine or isolation, an employ-
    10  ee shall be eligible for paid family leave  benefits  and  benefits  due
    11  pursuant  to  disability  pursuant to this act.  An employer with ten or
    12  fewer employees as of January 1, 2020, and that  has  a  net  income  of
    13  greater than one million dollars in the previous tax year, shall provide
    14  each  employee  who  is subject to a precautionary or mandatory order of
    15  quarantine or isolation issued by the state of New York, the  department
    16  of  health,  local  board  of  health,  or  any governmental entity duly
    17  authorized to issue such order due to COVID-19, at least  five  days  of
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD12052-01-0

        A. 10153                            2
 
     1  paid  sick leave and unpaid leave until the termination of any mandatory
     2  or precautionary order of quarantine or isolation.  After such five days
     3  of paid sick leave, an employee shall be eligible for paid family  leave
     4  benefits and benefits due pursuant to disability pursuant to this act.
     5    (b)  For employers with between eleven and ninety-nine employees as of
     6  January 1, 2020, each employee who is subject to a mandatory or  precau-
     7  tionary  order  of  quarantine  or  isolation issued by the state of New
     8  York, the department of health, local board of health,  or  any  govern-
     9  mental entity duly authorized to issue such order due to COVID-19, shall
    10  be  provided with at least five days of paid sick leave and unpaid leave
    11  until the termination of any mandatory or precautionary order of quaran-
    12  tine or isolation. After such five days of paid sick leave, an  employee
    13  shall be eligible for paid family leave benefits and benefits due pursu-
    14  ant to disability pursuant to this act.
    15    (c)  For employers with one hundred or more employees as of January 1,
    16  2020, each employee who is subject to a mandatory or precautionary order
    17  of quarantine or isolation issued by the state of New York, the  depart-
    18  ment  of  health, local board of health, or any governmental entity duly
    19  authorized to issue such order due to COVID-19, shall be  provided  with
    20  at  least  fourteen  days  of  paid  sick  leave during any mandatory or
    21  precautionary order of quarantine or isolation.
    22    (d) For public employers, each officer or employee who is subject to a
    23  mandatory or precautionary order of quarantine or  isolation  issued  by
    24  the  state of New York, the department of health, local board of health,
    25  or any governmental entity duly authorized to issue such  order  due  to
    26  COVID-19  shall  be  provided  with  at least fourteen days of paid sick
    27  leave during any mandatory  or  precautionary  order  of  quarantine  or
    28  isolation.   Each officer or employee shall be compensated at his or her
    29  regular rate of pay for those regular work hours during which the  offi-
    30  cer  or employee is absent from work due to a mandatory or precautionary
    31  order of quarantine or isolation due to COVID-19. For purposes  of  this
    32  act,  "public  employer" shall mean the following: (i)  the state;  (ii)
    33  a  county, city, town or village; (iii)  a  school  district,  board  of
    34  cooperative  educational  services,   vocational education and extension
    35  board or a school district as enumerated in section 1 of   chapter   566
    36  of  the laws of 1967, as amended; (iv) any governmental entity operating
    37  a college or university; (v) a public  improvement  or special  district
    38  including police  or  fire  districts; (vi) a public authority,  commis-
    39  sion  or  public benefit corporation; or (vii) any  other public  corpo-
    40  ration, agency, instrumentality or unit of  government  which  exercises
    41  governmental power under the  laws  of  this state.
    42    (e) Such leave shall be provided without loss of an officer or employ-
    43  ee's accrued sick leave.
    44    2.  For  purposes  of  this  act, "mandatory or precautionary order of
    45  quarantine or isolation" shall mean a mandatory or  precautionary  order
    46  of  quarantine or isolation issued by the state of New York, the depart-
    47  ment of health, local board of health, or  any  government  entity  duly
    48  authorized to issue such order due to COVID-19.
    49    3.  Upon return to work following leave taken pursuant to this act, an
    50  employee shall be restored by his or her employer  to  the  position  of
    51  employment  held  by  the  employee prior to any leave taken pursuant to
    52  this act with the same pay and other terms and conditions of employment.
    53  No employer or his or her agent, or the officer or agent of  any  corpo-
    54  ration,  partnership, or limited liability company, or any other person,
    55  shall discharge, threaten, penalize, or in any other manner discriminate

        A. 10153                            3
 
     1  or retaliate against any employee because such employee has taken  leave
     2  pursuant to this act.
     3    4. An employee shall not receive paid sick leave benefits or any other
     4  paid benefits provided by any provisions of this section if the employee
     5  is  subject  to a mandatory or precautionary order of quarantine because
     6  the employee has returned to the United  States  after  traveling  to  a
     7  country  for  which the Centers for Disease Control and Prevention has a
     8  level two or three travel health notice and the travel to  that  country
     9  was  not  taken as part of the employee's employment or at the direction
    10  of the employee's employer, and if the employee was provided  notice  of
    11  the  travel  health notice and the limitations of this subdivision prior
    12  to such travel.  Such employee shall be eligible to  use  accrued  leave
    13  provided  by  the employer, or to the extent that such employee does not
    14  have accrued leave or sufficient accrued leave, unpaid sick leave  shall
    15  be  provided  for the duration of the mandatory or precautionary quaran-
    16  tine or isolation.
    17    5. The commissioner of labor  shall  have  authority  to  adopt  regu-
    18  lations, including emergency regulations, and issue guidance to effectu-
    19  ate any of the provisions of this act. Employers shall comply with regu-
    20  lations  promulgated by the commissioner of labor for this purpose which
    21  may include, but is not limited to, standards for the use, payment,  and
    22  employee eligibility of sick leave pursuant to this act.
    23    6.  Notwithstanding  any  other  provision of law, and for purposes of
    24  this act only, for purposes of article 9 of  the  workers'  compensation
    25  law,  "disability"  shall  mean: any inability of an employee to perform
    26  the regular duties of his or her employment or the duties of  any  other
    27  employment which his or her employer may offer him or her as a result of
    28  a  mandatory or precautionary order of quarantine or isolation issued by
    29  the state, the department of health, a local board  of  health,  or  any
    30  government  entity  duly  authorized to issue such order due to COVID-19
    31  and when the employee has exhausted all paid sick leave provided by  the
    32  employee's employer under this act.
    33    7.  Notwithstanding  subdivision  1  of  section  204  of the workers'
    34  compensation law, disability benefits payable pursuant to this act shall
    35  be payable on the first day of disability.
    36    8. Notwithstanding any other provision of law,  and  for  purposes  of
    37  this  act  only,  for purposes of article 9 of the workers' compensation
    38  law, "family leave" shall mean: (a) any leave taken by an employee  from
    39  work  when  an employee is subject to a mandatory or precautionary order
    40  of quarantine or isolation  issued  by  the  state,  the  department  of
    41  health,  a  local board of health, or any government entity duly author-
    42  ized to issue such order due to COVID-19; or (b) to provide care  for  a
    43  minor  dependent  child of the employee who is subject to a mandatory or
    44  precautionary order of quarantine or isolation issued by the state,  the
    45  department  of health, a local board of health, or any government entity
    46  duly authorized to issue such order due to COVID-19.
    47    9. Notwithstanding any other provision of law,  and  for  purposes  of
    48  this  act  only,  for purposes of article 9 of the workers' compensation
    49  law, disability and family leave benefits pursuant to this  act  may  be
    50  payable  concurrently to an eligible employee upon the first full day of
    51  an unpaid period of mandatory or precautionary order  of  quarantine  or
    52  isolation  issued  by the state of New York, the department of health, a
    53  local board of health, or any government entity duly authorized to issue
    54  such order due to  COVID-19,  provided  however,  an  employee  may  not
    55  collect  any benefits that would exceed $840.70 in paid family leave and
    56  $2,043.92 in benefits due pursuant to disability per week.

        A. 10153                            4
 
     1    10. Notwithstanding any other provision of law, and  for  purposes  of
     2  this  act  only,  for purposes of article 9 of the workers' compensation
     3  law, the maximum weekly  benefit  which  the  employee  is  entitled  to
     4  receive  for benefits due pursuant to disability pursuant to subdivision
     5  six  of  this  section  only shall be the difference between the maximum
     6  weekly family leave benefit and such  employee's  total  average  weekly
     7  wage  from each covered employer up to a maximum benefit due pursuant to
     8  disability of $2,043.92 per week.
     9    11. Notwithstanding subdivision 7 of section 590, and subdivision 2 of
    10  section 607, of the labor law, a claim for benefits under article 18  of
    11  the  labor  law  due to closure of an employer otherwise subject to this
    12  section for a reason related to COVID-19 or due to a mandatory order  of
    13  a  government  entity  duly authorized to issue such order to close such
    14  employer otherwise subject to this section, shall not be  subject  to  a
    15  waiting period for a claim for benefits pursuant to such title.
    16    12.  A  mandatory  or  precautionary  order of quarantine or isolation
    17  issued by the state, the department of health, a local board of  health,
    18  or  any  government  entity  duly  authorized to issue such order due to
    19  COVID-19 shall be sufficient proof of disability or proof  of  need  for
    20  family leave taken pursuant to this act.
    21    13.  The  provisions  of  this  act  shall not apply in cases where an
    22  employee is deemed asymptomatic or has not yet been diagnosed  with  any
    23  medical condition and is physically able to work while under a mandatory
    24  or  precautionary  order  of  quarantine  or  isolation, whether through
    25  remote access or other similar means.
    26    14. Nothing in this section  shall  be  deemed  to  impede,  infringe,
    27  diminish or impair the rights of a public employee or employer under any
    28  law,  rule,  regulation  or  collectively  negotiated  agreement, or the
    29  rights  and  benefits  which  accrue  to  employees  through  collective
    30  bargaining agreements, or otherwise diminish the integrity of the exist-
    31  ing  collective  bargaining  relationship,  or to prohibit any personnel
    32  action which otherwise would have been taken regardless of  any  request
    33  to use, or utilization of, any leave provided by this act.
    34    15.  Notwithstanding  any  inconsistent provision of law, on or before
    35  June 1, 2020, the superintendent of financial services by regulation, in
    36  consultation with the director of the state insurance fund and the chair
    37  of the workers' compensation board of the state, shall promulgate  regu-
    38  lations necessary for the implementation of a risk adjustment pool to be
    39  administered  directly  by  the superintendent of financial services, in
    40  consultation with the director of the state insurance fund and the chair
    41  of the workers' compensation board of the state.  "Risk adjustment pool"
    42  as used in this subdivision shall mean the  process  used  to  stabilize
    43  member  claims  pursuant  to  this act in order to protect insurers from
    44  disproportionate adverse risks. Disproportionate losses of  any  members
    45  of the risk adjustment pool in excess of threshold limits established by
    46  the  superintendent of financial services of the state may be supported,
    47  if required by the superintendent, by other members of such pool includ-
    48  ing the state insurance fund in a proportion to  be  determined  by  the
    49  superintendent.   Any such support provided by members of the pool shall
    50  be fully repaid, including reasonable interest, through a mechanism  and
    51  period  of  time  to  be  determined  by the superintendent of financial
    52  services.
    53     16.  (a) The superintendent of financial  services,  in  consultation
    54  with the director of the state insurance fund and the chair of the work-
    55  ers'  compensation  board  shall  issue  two  reports assessing the risk
    56  adjustment pool required by this act.

        A. 10153                            5
 
     1    (b) On or before January 1, 2022, an initial report shall be  provided
     2  to the speaker of the assembly, the chair of the assembly ways and means
     3  committee  and  the chair of the assembly labor committee, the temporary
     4  president of the senate, the chair of the senate finance  committee  and
     5  the  chair  of  the senate labor committee.  Such report shall  include:
     6  the total number of claims filed pursuant to this section for (i) family
     7  leave benefits, and (ii) benefits due to disability, as a  result  of  a
     8  mandatory  or  precautionary  order  of  quarantine  or isolation due to
     9  COVID-19; the aggregate amount of paid family leave claims and disabili-
    10  ty claims; the total amount of the claims  paid  for  out  of  the  risk
    11  adjustment  pool;  the threshold limits established by the department of
    12  financial services; and any  other  information  the  superintendent  of
    13  financial services deems necessary to provide to the legislature.
    14    (c)  On or before January 1, 2025, a final report shall be provided to
    15  the speaker of the assembly, the chair of the assembly  ways  and  means
    16  committee  and  the chair of the assembly labor committee, the temporary
    17  president of the senate, the chair of the senate finance  committee  and
    18  the  chair  of the senate labor committee. Such report shall include the
    19  balance of the risk adjustment pool, if any, the total amount  collected
    20  through  the repayment mechanism established by the department of finan-
    21  cial services including interest; and any other information  the  super-
    22  intendent of financial services deems necessary to provide to the legis-
    23  lature.    If  there  exists  a balance in the risk adjustment pool, the
    24  final report shall  provide  a  timeline  by  which  repayment  will  be
    25  completed.
    26    17.  If at any point while this section shall be in effect the federal
    27  government  by  law  or  regulation  provides sick leave and/or employee
    28  benefits for employees related to COVID-19, then the provisions of  this
    29  section,  including,  but  not  limited to, paid sick leave, paid family
    30  leave, and benefits due to disability, shall not  be  available  to  any
    31  employee  otherwise subject to the provisions of this section; provided,
    32  however, that if the provisions of this section would have provided sick
    33  leave and/or employee benefits in excess of the benefits provided by the
    34  federal government by law or regulation, then  such  employee  shall  be
    35  able to claim such additional sick leave and/or employee benefits pursu-
    36  ant  to  the  provisions  of this section in an amount that shall be the
    37  difference between the benefits available under  this  section  and  the
    38  benefits available to such employee, if any, as provided by such federal
    39  law or regulation.
    40    § 2. This act shall take effect immediately.
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