New York Codes, Rules and Regulations
Title 12 - DEPARTMENT OF LABOR
Chapter V - Workers' Compensation
Subchapter H - Disability Benefits
Article 1 - Regulations Under Disability Benefits Law
Part 355 - Definitions
Section 355.9 - Paid family leave definitions
Universal Citation: 12 NY Comp Codes Rules and Regs ยง 355.9
Current through Register Vol. 46, No. 12, March 20, 2024
(a) As used in Part 380 of this Title:
(1)
Arbitration means the submission of a dispute to one or more
impartial persons for a final and binding decision, known as an award. Awards
are made in writing and are final and binding on the parties in the case,
subject to article 75 of the Civil Practice Law and Rules.
(2)
Average Weekly Wage
(AWW) means, for the purpose of computing the rate of payment of
family leave benefits, the amount determined by dividing either the total wages
of such employee in the employment of his last covered employer for the eight
weeks or portion thereof that the employee was in such employment immediately
preceding and including his last day worked prior to the first day of paid
family leave, or the total wages of the last eight weeks or portion thereof
immediately preceding and excluding the week in which the paid family leave
began, whichever is the higher amount, by the number of weeks or portion
thereof of such employment. For individual business owners, as defined in
paragraph (11) of this subdivision, who elect coverage under article 9 of the
Workers' Compensation Law, average weekly wage shall be determined by computing
the individual business owner's total net income in the 52 week period
immediately preceding the period of leave and dividing such total wages by
52.
(3)
Benefit
means the money payable to an eligible employee during family leave.
(4)
Care recipient means the
family member receiving care from the employee taking paid family
leave.
(5)
Day of paid
family leave means any full day in which the employee was prevented
from performing work for the covered employer because the employee used family
leave.
(6)
Desk
arbitration means the submission of a dispute to one or more impartial
persons for a final and binding decision, known as an award. There is no
hearing, and the decision is based on the submissions made by the interested
parties. Awards are made in writing and are final and binding on the parties in
the case, subject to article 75 of the Civil Practice Law and Rules.
(7)
Dispute resolution forum
means the company responsible for handling the arbitration for paid family
leave disputes, comprised of impartial persons who make the final and binding
decision as to any awards.
(8)
Fifty-two consecutive weeks means 52 consecutive weeks or
calendar weeks and shall be computed retroactively with respect to each day for
which benefits are currently being claimed.
(9)
Group health insurance
means a plan (including a self-insured plan) of, or contributed to by, an
employer (including a self-employed person) or employee organization to provide
health care (directly or otherwise) to the employees, former employees, the
employer, or others associated or formerly associated with the employer in a
business relationship.
(10)
Health care provider means a person licensed under article
131, 131-b, 132, 133, 136, 139, 141, 143, 144, 153, 154, 156, or 159 of the
Education Law, or a person licensed under the Public Health Law, article 140 of
the Education Law or article 163 of the Education Law as more fully set forth
in subdivision (22) of section 201 of the Workers' Compensation Law.
Health care provider also includes persons licensed and in
good standing in the equivalent specialty in another state or another country
when the care recipient resides in another state or another country.
(11)
Individual business
owner means a sole proprietor, member of a limited liability company,
partnership, limited liability partnership or self-employed person as set forth
in subparagraph (b) of subdivision (4) of section 212 of the Workers'
Compensation Law who is the exclusive owner of a business, and who is entitled
to keep all profits after taxes have been paid but is liable for all losses,
including LLCs or LLPs.
(12)
Insurance carrier means the State Insurance Fund, stock
corporations, mutual corporations or reciprocal insurers with which employers
have insured, and employers permitted to pay compensation directly under the
provisions of Workers' Compensation Law section 50(3), (3-a) or (4).
Insurance carrier also means, as applicable, an employer which
has failed to obtain the required workers' compensation coverage pursuant to
Workers' Compensation Law section 50.
(13)
PFL means the New York
State Paid Family Leave Benefits Law.
(14)
Premium means the total
amount paid for an insurance policy on an annual basis.
(15)
Qualifying event means
an occurrence that causes an employee to be eligible for family
leave.
(16)
Serious health
condition means an illness, injury, impairment, or physical or mental
condition that involves: inpatient care in a hospital, hospice, or residential
health care facility; or continuing treatment or continuing supervision by a
health care provider. Serious health condition also means a
COVID-19 diagnosis by a health care provider.
(i) As used in this Title, continuing
treatment or continuing supervision by a health care provider means
one or more of the following:
(a) a period of
more than three consecutive, full days during which a family member is unable
to work, attend school, perform regular daily activities, or is otherwise
incapacitated due to illness, injury, impairment, or physical or mental
conditions, and any subsequent treatment or period of incapacity relating to
the same condition, that also involves:
(1)
treatment two or more times by a health care provider; or
(2) treatment on at least one occasion by a
health care provider, which results in a regimen of continuing treatment under
the supervision of the health care provider;
(b) any period during which a family member
is unable to work, attend school, perform regular daily activities, or is
otherwise incapacitated due to a chronic serious health condition. A chronic
serious health condition is one which:
(1)
requires periodic visits for treatment by a health care provider;
(2) continues over an extended period of time
(including recurring episodes of a single underlying condition); and
(3) may cause episodic rather than a
continuing period of incapacity. Examples of such episodic incapacity include
but are not limited to asthma, diabetes, and epilepsy;
(c) a long-term or permanent period during
which a family member is unable to work, attend school, perform regular daily
activities, or is otherwise incapacitated due to an illness, injury,
impairment, or physical or mental condition for which treatment may not be
effective. The family member must be under the continuing supervision of, but
need not be receiving active treatment by, a health care provider. Examples
include, but are not limited to, Alzheimer's, a severe stroke, or the terminal
stages of a disease;
(d) a period
during which a family member is unable to work, attend school, perform regular
daily activities, or is otherwise incapacitated because he or she is receiving
treatment (including any period of recovery therefrom) by a health care
provider for:
(1) restorative surgery after
an accident or other injury; or
(2)
a condition that would likely result in a period of incapacity of more than
three consecutive full days in the absence of medical intervention or
treatment. Examples include, but are not limited to, cancer
(e.g., chemotherapy and radiation), severe arthritis (physical
therapy), or kidney disease (dialysis).
(ii) As used in this Title, the term
treatment includes, but is not limited to, examinations to
determine if a serious health condition exists and evaluations of the
condition. Treatment does not include routine examinations. Examples of a
regimen of continuing treatment includes, but is not limited to, a course of
prescription medication (e.g., an antibiotic) or therapy
requiring special equipment to resolve or alleviate the health condition
(e.g., oxygen). A regimen of continuing treatment that
includes the taking of over-the-counter medications (e.g.,
aspirin, antihistamines, or salves), bed-rest, drinking fluids, exercise, and
other similar activities that can be initiated without a visit to a health care
provider, is not, by itself, sufficient to constitute a regimen of continuing
treatment for purposes of leave under this Title.
(iii) Conditions for which cosmetic
treatments are administered (such as most treatments for acne or plastic
surgery) are not serious health conditions unless inpatient hospital care is
required or unless complications develop. Ordinarily, unless complications
arise, the common cold, the flu, ear aches, upset stomach, minor ulcers,
headaches other than migraine, routine dental or orthodontia problems,
periodontal disease, etc., are examples of conditions that do not meet the
definition of a serious health condition and do not qualify for leave under
this Title. Restorative dental or plastic surgery after an injury or removal of
cancerous growths are serious health conditions, provided all the other
conditions of this paragraph are met. Mental illness or allergies may be
serious health conditions, but only if all the conditions of this paragraph are
met.
(17)
Termination of employment means the last day that the employee
performs work in the service of a covered employer.
(18)
Third party
administrator means an individual or entity licensed to represent
self-insured employers or insurance carriers pursuant to subdivisions (3-b) and
(3-d) of Workers' Compensation Law section 50.
(19)
Wages means the money
rate at which employment with a covered employer is recompensed by the employer
as more fully set forth in section
357.1 of
this Title. For the purposes of paid family leave, the computation shall
include the reasonable value of board, rent, housing, lodging or similar
advantage received where such are withheld by the employer during the period of
family leave and shall not include the cash value of benefits, the receipt of
which by an employee is not subject to the New York State personal income tax.
Wages for an individual business owner, as that term is defined in paragraph
(11) of this subdivision, shall be earnings subject to Federal self-employment
tax.
(b) The definitions included in this section may be used in this Title when context so requires.
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