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S08117 Summary:

BILL NOS08117A
 
SAME ASSAME AS A10391
 
SPONSORMARTINEZ
 
COSPNSRBROOKS, GAUGHRAN, HOYLMAN, KAMINSKY, KENNEDY, METZGER, THOMAS
 
MLTSPNSR
 
Add 207-r & 92-e, Gen Muni L; add Art 8-B 180 - 186, amd 15, Work Comp L
 
Creates a presumption that impairment of health caused by COVID-19 was incurred in the performance and discharge of duty of certain police, parole and probation officers and other emergency responders; relates to use of sick leave due to COVID-19.
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S08117 Actions:

BILL NOS08117A
 
03/23/2020REFERRED TO LOCAL GOVERNMENT
04/08/2020AMEND AND RECOMMIT TO LOCAL GOVERNMENT
04/08/2020PRINT NUMBER 8117A
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S08117 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8117--A
 
                    IN SENATE
 
                                     March 23, 2020
                                       ___________
 
        Introduced  by  Sens. MARTINEZ, BROOKS, GAUGHRAN, KAMINSKY -- read twice
          and ordered printed, and when printed to be committed to the Committee
          on Local Government -- committee  discharged,  bill  amended,  ordered
          reprinted as amended and recommitted to said committee
 
        AN  ACT  to  amend the general municipal law, in relation to presumption
          regarding impairment of health caused by COVID-19 and in  relation  to
          sick leave; and to amend the workers' compensation law, in relation to
          workers'  compensation coverage and benefits for employees who partic-
          ipated in essential services during the COVID-19 outbreak
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The  general  municipal  law  is  amended by adding a new
     2  section 207-r to read as follows:
     3    § 207-r. Notwithstanding any provision  of  this  chapter  or  of  any
     4  general,  special  or local law to the contrary, and for the purposes of
     5  this chapter, any condition of impairment of health caused by  COVID-19,
     6  resulting  in  total or partial disability, death, accidental disability
     7  or accidental death to any  sheriff,  undersheriff,  deputy  sheriff  or
     8  corrections  officer  of  the sheriff's department of any county, or any
     9  member of a police force of any county, city, town or village, or of any
    10  district, agency, board, body or commission thereof, or any LIRR  police
    11  officer  as  defined  in paragraph two of subdivision a of section three
    12  hundred eighty-nine of the retirement and social security  law,  or  any
    13  paid   officer   or   member   of   an  organized  fire  company or fire
    14  department of a city, town, village  or   fire   district, or  emergency
    15  medical  technician, advanced emergency medical technician or paramedic,
    16  whose  benefits  are  provided  in  and  pursuant  to such section three
    17  hundred eighty-nine, or a detective-investigator or any  other  investi-
    18  gator who is a police officer pursuant to the provisions of the criminal
    19  procedure law employed in the office of a district attorney of any coun-
    20  ty,  or any probation officer of any department, agency or service main-
    21  tained by any county or city,  or  any  parole  officer  as  defined  by
    22  section  ten  of  the correction law, or a peace officer employed by the
    23  unified court system or a member of the uniformed  correction  force  of
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15859-05-0

        S. 8117--A                          2
 
     1  New  York  city  department of correction or of the state or any munici-
     2  pality, or police officer employed by  the  metropolitan  transportation
     3  authority,  or  a  police  officer employed by the port authority of New
     4  York  and New Jersey or police officer as defined in subdivision thirty-
     5  four of section 1.20 of the criminal procedure law, or  members  of  the
     6  regional  state  park police, members of the division of law enforcement
     7  in the department of environmental  conservation,  members  holding  the
     8  position  of  forest ranger in the service of the department of environ-
     9  mental conservation, university police officers appointed by  the  state
    10  university  as  defined  in the retirement and social security law whose
    11  benefits are provided in and pursuant to section three  hundred  eighty-
    12  three, three hundred eighty-three-a, three hundred eighty-three-b, three
    13  hundred  eighty-three-c,  or three hundred eighty-three-d of the retire-
    14  ment and social security law, troopers and trooper investigators, or any
    15  supervising fire inspector, fire inspector, fire marshal,  or  assistant
    16  fire  marshal  where  such officer is exposed or comes into contact with
    17  COVID-19 and such member test positive for COVID-19, shall  be  presump-
    18  tive evidence that such permanent or partial disability or death (1) was
    19  caused by the natural and proximate exposure, not caused by the individ-
    20  ual's  own  negligence  and  (2)  was  incurred  in  the performance and
    21  discharge of duty and  proximate  result  of  an  accident,  unless  the
    22  contrary  be  proven  by competent evidence.  Any individual pursuant to
    23  this section that is taken ill in the performance of his or  her  duties
    24  so as to necessitate medical or other lawful remedial treatment shall be
    25  paid  by the municipality or the Long Island Rail Road Company, the port
    26  authority of New York and New Jersey or the metropolitan  transportation
    27  authority  by  which he or she is employed the full amount of his or her
    28  regular salary or wages from such employer until his or  her  disability
    29  arising  therefrom  has ceased, in addition the municipality or the Long
    30  Island Rail Road Company, the port authority of New York and New  Jersey
    31  or  the  metropolitan transportation authority shall be liable for fifty
    32  percent of all medical treatment and hospital care necessitated by  such
    33  reason of illness and the state shall be liable for fifty percent.
    34    § 2. The general municipal law is amended by adding a new section 92-e
    35  to read as follows:
    36    §  92-e.  Sick  leave  for officers and employees with COVID-19. 1.(a)
    37  Notwithstanding any other law, rule or regulation to the  contrary,  any
    38  sheriff,  undersheriff,  deputy  sheriff  or  corrections officer of the
    39  sheriff's department of any county or any member of a  police  force  of
    40  any  county,  city  with  a population of less than one million, town or
    41  village, or of any district, agency, board, body or commission  thereof,
    42  or,  any  police  officer whose benefits are provided in and pursuant to
    43  section three hundred eighty-three, three hundred eighty-three-a,  three
    44  hundred  eighty-three-b,  three hundred eighty-three-c, or three hundred
    45  eighty-three-d of the retirement and social security law,  troopers  and
    46  trooper  investigators,  or  any LIRR police officer as defined in para-
    47  graph two of subdivision a of section three hundred eighty-nine  of  the
    48  retirement  and  social  security law, or any  paid  officer  or  member
    49  of  an  organized  fire  company or fire department  of  a  city,  town,
    50  village  or  fire  district, or emergency  medical  technician, advanced
    51  emergency  medical  technician or paramedic, whose benefits are provided
    52  in and pursuant to such section three hundred eighty-nine, or  a  detec-
    53  tive-investigator  or  any  other  investigator  who is a police officer
    54  pursuant to the provisions of the criminal procedure law employed in the
    55  office of a district attorney of any county, or  probation  officers  of
    56  any  department,  agency or service maintained by any county or city, or

        S. 8117--A                          3
 
     1  parole officers as defined by section ten of the correction  law,  or  a
     2  peace  officer  employed  by the unified court system or a member of the
     3  uniformed correction force of New York city department of correction  or
     4  of  the  state  or  any  municipality, or police officer employed by the
     5  metropolitan transportation authority, or a police officer  employed  by
     6  the  port  authority  of  New  York  and New Jersey or police officer as
     7  defined in subdivision thirty-four  of  section  1.20  of  the  criminal
     8  procedure  law,  or any supervising fire inspector, fire inspector, fire
     9  marshal, or assistant fire marshal who was exposed or came into  contact
    10  with  COVID-19  and  such  individual  tests  positive  for COVID-19, as
    11  defined in section two hundred seven-r of this chapter, shall, after the
    12  receipt of a written request for line of duty  sick  leave,  be  granted
    13  line  of  duty  sick leave commencing on the date that such employee was
    14  diagnosed with COVID-19. The individual shall be compensated at  his  or
    15  her  regular  rate  of pay for those regular work hours during which the
    16  individual is absent from work due to his or her  COVID-19.  Such  leave
    17  shall be provided without loss of an individual's accrued sick leave.
    18    (b)  A  public  employer  shall  not take any adverse personnel action
    19  against a public employee regarding the  employee's  employment  because
    20  either  (i) the employee utilizes, or requests to utilize, sick leave or
    21  any other available leave due to COVID-19, or (ii) the employee utilizes
    22  or requests to utilize line of duty sick leave provided by this section.
    23    (c) For purposes of this section, an "adverse personnel action"  means
    24  any  discipline,  including  issuing  a notice of discipline, discharge,
    25  suspension, demotion, penalization, or discrimination against an employ-
    26  ee utilizing line of duty sick leave pursuant to paragraph (a)  of  this
    27  subdivision.
    28    Nothing  in  this  section shall limit an employer's power pursuant to
    29  any other provision of law to discipline an individual  by  termination,
    30  reduction  of  salary, or any other appropriate measure; to terminate an
    31  appointee who has not completed his or her  probationary  term;  and  to
    32  apply for ordinary or accident disability retirement for an individual.
    33    2.  (a)  Notwithstanding  any  other  law,  rule  or regulation to the
    34  contrary, any sheriff, undersheriff, deputy sheriff or corrections offi-
    35  cer of the sheriff's department of any county or any member of a  police
    36  force of any county, city with a population of one million or more, town
    37  or village, or of any district, agency, board, body or commission there-
    38  of,  any  police  officer whose benefits are provided in and pursuant to
    39  section three hundred eighty-three, three hundred eighty-three-a,  three
    40  hundred  eighty-three-b,  three hundred eighty-three-c, or three hundred
    41  eighty-three-d of the retirement and social security law,  troopers  and
    42  trooper  investigators,  or  any LIRR police officer as defined in para-
    43  graph two of subdivision a of section three hundred eighty-nine  of  the
    44  retirement  and  social  security law, or any  paid  officer  or  member
    45  of  an  organized  fire  company or fire department  of  a  city,  town,
    46  village  or  fire  district, or emergency  medical  technician, advanced
    47  emergency  medical  technician or paramedic, whose benefits are provided
    48  in and pursuant to such section three hundred eighty-nine, or  a  detec-
    49  tive-investigator  or  any  other  investigator  who is a police officer
    50  pursuant to the provisions of the criminal procedure law employed in the
    51  office of a district attorney of any county, or  probation  officers  of
    52  any  department,  agency or service maintained by any county or city, or
    53  parole officers as defined by section ten of the correction law who  (i)
    54  do not receive benefits similar to those provided by this section pursu-
    55  ant  to  a  collectively  bargained  agreement,  section 14-122.1 of the
    56  administrative code of the city of New York,  section  15-108.1  of  the

        S. 8117--A                          4
 
     1  administrative  code  of  the  city  of  New  York,  or  other statutory
     2  provision and who was exposed or came into  contact  with  COVID-19  and
     3  such  individual  tests positive for COVID-19, as defined in section two
     4  hundred  seven-r  of this chapter, shall, after the receipt of a written
     5  request for line of duty sick leave, be granted line of duty sick  leave
     6  commencing  on  the date that such employee was diagnosed with COVID-19.
     7  The individual shall be compensated at his or her regular  rate  of  pay
     8  for  those regular work hours during which the individual is absent from
     9  work due to his or her COVID-19. Such leave shall  be  provided  without
    10  loss of an individual's accrued sick leave.
    11    (b)  A  public  employer  shall  not take any adverse personnel action
    12  against a public employee regarding the  employee's  employment  because
    13  either  (i) the employee utilizes, or requests to utilize, sick leave or
    14  any other available leave due to COVID-19, or (ii) the employee utilizes
    15  or requests to utilize line of duty sick leave provided by this section.
    16    (c) For purposes of this section, an "adverse personnel action"  means
    17  any  discipline,  including  issuing  a notice of discipline, discharge,
    18  suspension, demotion, penalization, or discrimination against an employ-
    19  ee utilizing line of duty sick leave pursuant to paragraph (a)  of  this
    20  subdivision.
    21    Nothing  in  this  section shall limit an employer's power pursuant to
    22  any other provision of law to discipline an individual  by  termination,
    23  reduction  of  salary, or any other appropriate measure; to terminate an
    24  appointee who has not completed his or her  probationary  term;  and  to
    25  apply for ordinary or accident disability retirement for an individual.
    26    3.  For purposes of this section, "cost" shall mean the number of days
    27  of sick leave that must be restored to an officer or  employee  pursuant
    28  to  subdivision  one  or two of this section multiplied by such individ-
    29  ual's wage rate at the time that such sick leave for which reimbursement
    30  is being sought was taken.
    31    4. A request, for line of duty sick leave  shall  be  in  writing  and
    32  include  a  waiver of the protection afforded to the individual pursuant
    33  to the health insurance portability  and  accountability  act  to  allow
    34  disclosure  of  the  individual's  exposure or contact with COVID-19 and
    35  such individual's positive test for COVID-19  and  any  medical  records
    36  concerning  such  individual's  employee's notice of exposure or contact
    37  with COVID-19 and such individual's positive test for  COVID-19  in  the
    38  possession of the retirement system in which such individual is a member
    39  for  the  purpose of reviewing, processing and auditing his or her claim
    40  for line of duty sick leave. Such waiver shall be in the  form  required
    41  by  the retirement system of which he or she is a member, along with the
    42  application for line of duty sick leave, with his or her employer.
    43    § 3. The workers' compensation law is amended by adding a new  article
    44  8-B to read as follows:
    45                                 ARTICLE 8-B
    46                ESSENTIAL EMPLOYEES DURING COVID-19 OUTBREAK
    47  Section 180. Definitions.
    48          181. Registration  of  participation in essential employee oper-
    49                 ations.
    50          182. Notice.
    51          183. Disablement  of  an  essential  employee  during   COVID-19
    52                 outbreak treated as an accident.
    53          184. Reopening of disallowed claims.
    54          185. Liability of employer and insurance carrier.
    55          186. Claims of volunteers.

        S. 8117--A                          5
 
     1    §  180.  Definitions. 1. "Essential employee during COVID-19 outbreak"
     2  means an employee who worked at an essential business during the  COVID-
     3  19  outbreak beginning January first, two thousand twenty, as defined by
     4  executive order 202.6  or  guidance  by  Empire  State  Development,  or
     5  received  a  waiver  as an essential business from Empire State Develop-
     6  ment.
     7    2. "Qualifying condition" means  tests  positive  for  COVID-19  while
     8  working for an essential employer during COVID-19 outbreak.
     9    3.  "Disablement"  shall  have  the same meaning as defined in section
    10  thirty-seven of this chapter and determined by the  board  in  the  same
    11  manner as provided in section forty-two of this chapter.
    12    § 181. Registration of participation in essential employee operations.
    13  In order for the claim of an essential employee during COVID-19 outbreak
    14  to  come within the application of this article, such employee must file
    15  a written and sworn statement with the board on a  form  promulgated  by
    16  the  chair  indicating the dates and locations of such participation and
    17  the name of the participant's employer  during  the  period  of  partic-
    18  ipation.    Such statement must be filed not later than December thirty-
    19  first, two thousand twenty-two. The board shall transmit a copy of  such
    20  statement to the employer or carrier named therein. The filing of such a
    21  statement  shall  not  be  considered the filing of a claim for benefits
    22  under this chapter.
    23    § 182. Notice. The notice requirements for injury or  death  resulting
    24  from  a  qualifying  condition for an essential employee during COVID-19
    25  outbreak shall be the same as set forth  in  section  eighteen  of  this
    26  chapter,  except  that  the notice shall be given to the employer, or in
    27  the case of a volunteer, to the board, within two years after the  disa-
    28  blement  of the participant or after the participant knew or should have
    29  known that the qualifying condition was causally related to his  or  her
    30  employment  as  an  essential employee during COVID-19, whichever is the
    31  later date.
    32    § 183. Disablement of an essential employee during  COVID-19  outbreak
    33  treated as an accident. The date of disablement of an essential employee
    34  during  COVID-19  outbreak resulting from a qualifying condition that is
    35  causally related to such participation shall be treated as the happening
    36  of an accident within the meaning of this chapter and the procedure  and
    37  practice  provided  in this chapter shall apply to all proceedings under
    38  this article, except where otherwise specifically provided in this arti-
    39  cle. The board shall determine the date  of  disablement  that  is  most
    40  beneficial to the claimant.
    41    §  184.  Reopening  of  disallowed claims. The board, upon receiving a
    42  statement duly filed as required under section one hundred eighty-one of
    43  this article from an essential employee during the COVID-19 outbreak for
    44  a qualifying condition that was disallowed as barred by section eighteen
    45  or section twenty-eight of this chapter or by section one hundred eight-
    46  y-one of this article for failure to register timely, shall  reopen  and
    47  redetermine  such  claim in accordance with the provisions of this arti-
    48  cle; provided that no such previously disallowed claim for a  qualifying
    49  condition  shall  be determined to have a date of disablement that would
    50  bar the claim under section eighteen or  section  twenty-eight  of  this
    51  chapter.
    52    §  185.  Liability  of employer and insurance carrier. The employer in
    53  whose employment an essential employee is during the  COVID-19  outbreak
    54  shall  be  liable for fifty percent of any claim for a qualifying condi-
    55  tion that is presumed to be causally related,  under  this  section,  to
    56  such  employment  and the state shall be liable for fifty percent of any

        S. 8117--A                          6
 
     1  such claim; provided that such participation arose out  of  and  in  the
     2  course  of such employment. For the purpose of determining which carrier
     3  has insurance coverage of such claim, the  date  of  accident  shall  be
     4  considered the last day of such participation.
     5    § 186. Claims of volunteers. For persons who participated at an essen-
     6  tial  entity as volunteers at a non-profit organization providing essen-
     7  tial services, the uninsured employers' fund shall be deemed to be   the
     8  employer for the purposes of administering and paying claims pursuant to
     9  this  article.  Benefits  under  this  chapter  shall be payable to such
    10  volunteers in the first instance   and to  the  extent  that  funds  are
    11  available. The uninsured employers' fund may pay for volunteers' medical
    12  treatment.
    13    §  4. Section 15 of the workers' compensation law is amended by adding
    14  a new subdivision 3-a to read as follows:
    15    3-a. Compensation for permanent or temporary  partial  disability,  or
    16  for permanent or temporary total disability due to disablement resulting
    17  from  a qualifying condition suffered by an employee who participated in
    18  essential operations during the COVID-19 outbreak as set forth in  arti-
    19  cle eight-B of this chapter shall be eighty percent.
    20    §  5.  The  state  shall  reimburse  any public authority or municipal
    21  corporation of less than one million people for the cost of any line  of
    22  duty sick leave granted pursuant to this act.
    23    § 6. This act shall take effect immediately.
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