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 358 - Plans
Subpart 358-3 - Regulations Applying Both To Existing And New Plans
Section 358-3.1 - Benefits "at least as favorable" construed
Universal Citation: 12 NY Comp Codes Rules and Regs ยง 358-3.1
Current through Register Vol. 46, No. 12, March 20, 2024
(a) On or after May 1, 1989 and prior to July 1, 1989:
(1) Benefits under any plan within
the provisions of sections
358-1.1(b)(1),
358-1.2(b)
and
358-2.1
of this Part may, in aggregate, be deemed to be "at least as favorable,"
provided:
(i) the aggregate benefits for each
employee, including cash benefits and other benefits directly related to
disability, are equivalent to or greater than the disability benefits under
section 204 of the Workers' Compensation Law; and
(ii) the cash disability benefits meet the
minimum requirements under paragraph (2) of this subdivision.
(2) The following are minimum
requirements for the cash disability benefits provided under such plans:
(i) a weekly cash benefit rate at least:
(a) $102 per week for an employee whose
average weekly wage is $204 or more;
(b) fifty percent of average weekly wage for
an employee whose average weekly wage is $44 or more and less than
$204;
(c) $22 per week for an
employee whose average weekly wage is $40 or more and less than $44;
(d) $20 per week for an employee whose
average weekly wage is $20 or more and less than $40; and
(e) average weekly wage for an employee whose
average weekly wage is less than $20;
(ii) a waiting period of not more than seven
days of disability;
(iii) a
duration benefit period of at least 13 weeks of disability during a period of
52 consecutive calendar weeks or during any one period of disability, unless
the plan provides for full wage continuance in which event there shall be a
duration benefit period of at least eight weeks; and
(iv) cash disability benefits payable
periodically, exclusive of all other benefits, of a value at least equal to 60
percent of the disability benefits payable under section 204 of the Workers'
Compensation Law.
(3)
The chairman shall, by rule, prescribe a method for determining whether the
aggregate benefits and the cash disability benefits under a plan meet the
requirements of paragraph (1) of this subdivision.
(b) On or after July 1, 1989:
(1) Cash disability benefits under any plan
within the provisions of sections
358-1.1(b)(1),
358-1.2(b)
and
358-2.1
of this Part may be deemed "at least as favorable" provided:
(i) the weekly disability benefit for each
employee is equivalent to or greater than the weekly disability benefit
provided by section 204(2) of the Workers' Compensation Law;
(ii) the waiting period is no more than seven
consecutive days of disability; and
(iii) the duration of the benefit period is
at least 26 weeks of disability during a period of 52 consecutive calendar
weeks or during any one period of disability.
(2) Family leave benefits under any plan
within the provisions of subdivisions (4) and (5) of section 211 of the
Workers' Compensation Law, may, in aggregate, be deemed to be "at least as
favorable," provided:
(i) the aggregate
benefits for each employee, including cash benefits and other benefits directly
related to the qualifying event for family leave, are equivalent to or greater
than the family leave benefits under section 204 of the Workers' Compensation
Law; and
(ii) the cash family leave
benefits meet the minimum requirements under paragraph (3) of this
subdivision.
(3) The
following are minimum requirements for the cash family leave benefits provided
under such plans:
(i) when the employee is
eligible (after 26 weeks or 175 days) there is no waiting period for family
leave benefits;
(ii) a weekly cash
benefit rate:
(a) on or after January 1, 2018
at least 50 percent of the employee's average weekly wage or 50 percent of the
State average weekly wage, whichever is less;
(b) on or after January 1, 2019 at least 55
percent of the employee's average weekly wage or 55 percent of the State
average weekly wage, whichever is less;
(c) on or after January 1, 2020 at least 60
percent of employee's average weekly wage or 60 percent of the State average
weekly wage, whichever is less; and
(d) on or after January 1st of each
succeeding year, at least 67 percent of the employee's average weekly wage or
67 percent of the State average weekly wage, whichever is less;
(iii) a duration benefit period:
(a) on or after January 1, 2018, of at least
8 weeks during any 52 week calendar period;
(b) on or after January 1, 2019, of at least
10 weeks during any 52 week calendar period; and
(c) on or after January 1, 2021, of at least
12 weeks during any 52 week calendar period.
(4) The chair shall, by rule, prescribe a
method for determining whether the aggregate benefits and the cash disability
and family leave benefits under a plan meet the requirements of this
section.
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