NY Work Comp L § 201 (2021)
2021 New York Laws WKC - Workers' Compensation Article 9 - Disability Benefits 201 - Definitions.

§ 201. Definitions. As used in this article:   1.  "Board"  means the workmen's compensation board created under this chapter.   2. "Chairman" means the chairman of the workmen's  compensation  board of the state of New York.   3.  "State  fund" means the state insurance fund created under article six of this chapter.   4. "Employer," except when otherwise expressly stated, means a person, partnership,  association,  corporation,  legal  representative   of   a deceased  employer, or the receiver or trustee of a person, partnership, association or corporation, who has persons in employment as defined  in subdivision  six  of  this  section,  but  does not include the state, a municipal  corporation,  local  governmental  agency,  other   political subdivisions or public authority.   5.  "Employee" means a person engaged in the service of an employer in any  employment  defined  in  subdivision  six of this section, except a minor child of the employer, except a duly  ordained,  commissioned,  or licensed  minister,  priest  or  rabbi,  a  sexton,  a christian science reader, or member of a religious order, or an  executive  officer  of  a corporation  who at all times during the period involved owns all of the issued and outstanding stock of the corporation and  holds  all  of  the offices  pursuant  to  paragraph (e) of section seven hundred fifteen of the business corporation law or two executive officers of a  corporation who  at all times during the period involved between them own all of the issued and outstanding stock of  such  corporation  and  hold  all  such offices provided, however, that each officer must own at least one share of  stock,  except  as  provided  in  section two hundred twelve of this article,  or  an  executive  officer  of  an   incorporated   religious, charitable   or   educational  institution,  or  persons  engaged  in  a professional or teaching capacity in or for a religious,  charitable  or educational institution, or volunteers in or for a religious, charitable or  educational  institution,  or persons participating in and receiving rehabilitative services in a sheltered workshop operated by a religious, charitable or educational institution under a certificate issued by  the United  States department of labor, or recipients of charitable aid from a religious or charitable institution who perform work  in  or  for  the institution  which  is incidental to or in return for the aid conferred, and not under  an  express  contract  of  hire.  The  terms  "religious, charitable    or    educational   institution"   mean   a   corporation, unincorporated  association,  community  chest,   fund   or   foundation organized   and   operated  exclusively  for  religious,  charitable  or educational purposes, no part of the net earnings of which inure to  the benefit of any private shareholder or individual.   "Employee"   shall   also  mean,  for  purposes  of  this  chapter,  a professional musician or a person otherwise engaged  in  the  performing arts  who performs services as such for a television or radio station or network, a film production, a theatre, hotel, restaurant, night club  or similar  establishment  unless,  by  written  contract, such musician or person is stipulated to be an employee of another  employer  covered  by this  chapter.  "Engaged  in  the performing arts" shall mean performing service in connection with the  production  of  or  performance  in  any artistic   endeavor  which  requires  artistic  or  technical  skill  or expertise.   "Employee"  shall  also  mean,  for  purposes  of  this   chapter,   a professional model, who:  (a) performs modeling services for; or  (b)  consents in writing to the transfer of his or her exclusive legal right to the use of his or her name, portrait,  picture  or  image,  for advertising purposes or for the purposes of trade, directly to   a retail store, a manufacturer, an advertising agency, a photographer, a  publishing company or any other such person or entity, which dictates such professional model's assignments,  hours  of  work  or  performance locations  and which compensates such professional model in return for a waiver of such professional model's  privacy  rights  enumerated  above, unless  such  services  are  performed  pursuant  to  a written contract wherein it is stated that such professional model  is  the  employee  of another  employer  covered  by  this  chapter.  For the purposes of this paragraph, the term "professional model" means  a  person  who,  in  the course  of his or her trade, occupation or profession, performs modeling services. For purposes of this paragraph, the term  "modeling  services" means the appearance by a professional model in photographic sessions or the  engagement  of  such  model  in  live,  filmed  or  taped  modeling performances for remuneration.   6. "Employment."  A.  "Employment"  means  employment  in  any  trade, business  or  occupation  carried  on  by  an  employer, except that the following shall not be deemed employment under  this  article:  services performed  for  the  state,  a municipal corporation, local governmental agency, other political  subdivision  or  public  authority;  employment subject  to  the  federal  railroad  unemployment insurance act; service performed on or as an officer or member of the crew of a vessel  on  the navigable  water  of  the  United  States  or outside the United States; casual employment and the first forty-five days of extra  employment  of employees  not  regularly  in  employment  as  otherwise defined herein; service as golf caddies; and service during  all  or  any  part  of  the school  year  or  regular  vacation periods as a part-time worker of any person actually in regular attendance during the day time as  a  student in  an  elementary  or  secondary  school.  The  term "employment" shall include  domestic  or  personal  work  in  a  private  home.  The   term "employment"  shall  not  include the services of a licensed real estate broker or sales associate if it be proven that (a) substantially all  of the  remuneration  (whether  or  not  paid  in  cash)  for  the services performed by such broker or sales associate is directly related to sales or other output (including the performance of services) rather  than  to the  number of hours worked; (b) the services performed by the broker or sales associate are performed pursuant to a  written  contract  executed between  such  broker  or  sales  associate  and the person for whom the services are performed within the past twelve to fifteen months; and (c) the written contract provided for in subparagraph (b) of this  paragraph was not executed under duress and contains the following provisions:  (i)  that  the  broker or sales associate is engaged as an independent contractor associated with the person for whom  services  are  performed pursuant  to  article  twelve-A  of  the  real property law and shall be treated as such for all purposes, including but not limited  to  federal and  state  taxation,  withholding,  unemployment insurance and workers' compensation;  (ii) that the broker or sales associate (1) shall be paid a commission on his or her gross sales, if any, without deduction  for  taxes,  which commission shall be directly related to sales or other output; (2) shall not  receive any remuneration related to the number of hours worked; and (3) shall not be treated as an employee with respect  to  such  services for federal and state tax purposes;  (iii)  that  the  broker or sales associate shall be permitted to work any hours he or she chooses;  (iv) that the broker or sales associate shall be permitted to work out of his or her own home or the office of the person for whom services are performed;  (v)  that  the  broker  or  sales associate shall be free to engage in outside employment;  (vi) that the person for whom the services are performed  may  provide office  facilities  and  supplies  for  the  use  of the broker or sales associate, but the broker or sales associate shall otherwise bear his or her own expenses, including but not limited to automobile,  travel,  and entertainment expenses;  (vii)  that  the  person  for  whom the services are performed and the broker or sales associate shall comply with the requirements of  article twelve-A  of  the  real  property  law  and  the  regulations pertaining thereto, but such compliance  shall  not  affect  the  broker  or  sales associate's  status  as  an  independent  contractor  nor  should  it be construed as an indication that the broker  or  sales  associate  is  an employee  of  the  person  for  whom  the services are performed for any purpose whatsoever;  (viii) that the contract and the association created  thereby  may  be terminated  by either party thereto at any time upon notice given to the other.   "Employment" shall not include, for the purposes of this chapter,  the services  of  a  licensed insurance agent or broker if it be proven that (a) substantially all of the remuneration (whether or not paid in  cash) for  the  services performed by such agent or broker is directly related to sales or other output (including the performance of services)  rather than  to  the  number  of  hours  worked;  (b)  such agent is not a life insurance agent receiving a  training  allowance  subsidy  described  in paragraph  three  of subsection (e) of section four thousand two hundred twenty-eight of the insurance law; (c) the  services  performed  by  the agent  or  broker  are performed pursuant to a written contract executed between such agent or broker and the person for whom  the  services  are performed;  and  (d)  the written contract provided for in clause (c) of this paragraph was not executed under duress and contains the  following provisions:  (i)  that  the agent or broker is engaged as an independent contractor associated with the person for whom services are performed  pursuant  to article twenty-one of the insurance law and shall be treated as such for all  purposes,  including but not limited to federal and state taxation, withholding (other than federal insurance contributions act (FICA) taxes required for  full  time  life  insurance  agents  pursuant  to  section 3121(d)(3) of the federal internal revenue code), unemployment insurance and workers' compensation;  (ii) that the agent or broker (1) shall be paid a commission on his or her gross sales, if any, without deduction for taxes (other than federal insurance  contributions  act  (FICA)  taxes required for full time life insurance agents pursuant to section 3121(d)(3) of the federal  internal revenue  code),  which  commission shall be directly related to sales or other output; (2) shall not receive  any  remuneration  related  to  the number of hours worked; and (3) shall not be treated as an employee with respect  to such services for federal and state tax purposes (other than federal insurance contributions act (FICA) taxes required for full  time life  insurance  agents  pursuant  to  section 3121(d)(3) of the federal internal revenue code);  (iii) that the agent or broker shall be permitted to work any hours he or she chooses;  (iv) that the agent or broker shall be permitted to work out of his or her own office or home or the office of the person for whom services are performed;  (v)  that  the  person for whom the services are performed may provide office facilities, clerical support, and supplies for  the  use  of  the agent or broker, but the agent or broker shall otherwise bear his or her own  expenses,  including  but  not  limited  to automobile, travel, and entertainment expenses;  (vi) that the person for whom the services are performed and the agent or broker shall comply with the requirements of  article  twenty-one  of the  insurance  law  and  the  regulations  pertaining thereto, but such compliance shall not  affect  the  agent's  or  broker's  status  as  an independent  contractor nor should it be construed as an indication that the agent or broker is an employee of the person for whom  the  services are performed for any purpose whatsoever;  (vii)  that  the  contract  and the association created thereby may be terminated by either party thereto at any time with notice given to  the other.   B.  The  term  "employment"  includes  an  employee's  entire  service performed within or both within and without this state if the service is localized in this state. Service is deemed localized within the state if it is performed entirely within the state or is  performed  both  within and without the state but that performed without the state is incidental to the employee's service within the state or is temporary or transitory in nature or consists of isolated transactions.   C.  The  term  "employment"  includes  an  employee's  entire  service performed both  within  and  without  this  state  provided  it  is  not localized  in  any  state  but  some of the service is performed in this state, and  (1) the employee's base of operations is in this state; or  (2) if there is no base of operations in any state in which some  part of  the  service  is  performed,  the  place  from which such service is directed or controlled is in this state; or  (3) if the base of operations or place  from  which  such  service  is directed  or  controlled  is  not in any state in which some part of the service is performed, the employee's residence is in this state.   D. "Employment" shall not  include  the  services  of  a  media  sales representative  if  it  be  proven  that  (A)  substantially  all of the compensation  for  the  services   performed   by   such   media   sales representative is directly related to sales or other productivity rather than  to  the number of hours worked; (B) the media sales representative must be incorporated under the  laws  of  this  state  in  order  to  be considered an independent contractor and shall be solely responsible for the   payment  of  workers'  compensation  premiums;  (C)  the  services performed by the media sales representative are performed pursuant to  a written  contract  executed  between such media sales representative and the person for whom the services are  performed;  and  (D)  the  written contract  provided  for  in  subparagraph  (C) of this paragraph was not executed under duress and contains the following provisions:  (i) that the media sales representative is engaged as  an  independent contractor  associated  with  the person for whom services are performed and shall be treated as such for all purposes, including but not limited to federal and state taxation, withholdings, and workers' compensation;  (ii)  that  the  media  sales  representative  (1)  shall  be  paid  a commission  based  on a fixed fee rate outlined in the written contract, if any, without deduction for taxes, which commission shall be  directly related  to  sales  pursuant  to  price guidelines or other productivity within the sales area; (2) shall not receive any compensation related to  the number of hours worked; and (3) shall not be treated as an  employee with respect to such services for federal and state tax purposes;  (iii)  that  the media sales representative shall be permitted to work any hours he or she chooses subject to the restrictions in section three hundred ninety-nine-p of the general business law;  (iv) that the media sales representative may work at  any  site  other than on the premises of the person for whom services are performed;  (v)  that  the person for whom the services are performed shall not be responsible for any reimbursement expenses other than those outlined  in the written contract;  (vi) that the person for whom the services are performed and the media sales  representative  shall  comply  with all articles of the labor law that apply to such work other than article eighteen of  the  labor  law, but  such  compliance  shall not affect the media sales representative's status as an independent contractor nor should it  be  construed  as  an indication  that  the  media  sales representative is an employee of the person for whom the services are performed for any purpose whatsoever;  (vii) that the contract and the association  created  thereby  may  be terminated  by  the  media sales representative thereto at any time with two weeks  notice  given  to  the  person  for  whom  the  services  are performed.   For the purposes of this paragraph, "media sales representative" shall include  any  contractor  engaged  in  the  sale  or renewal of magazine subscriptions or the sale or renewal of magazine advertising  space  who (i)  receives  no  direction  or  control  on  the methods by which they perform services other than training on  product  characteristics,  (ii) are  solely  in control of their work schedule, and (iii) may refuse any work assignment.   7. "Termination of employment". Employment  with  a  covered  employer terminates  on  the  last  day on which an employee performs work in the service of such employer; provided, however, that employment  shall  not terminate  on  such  day if the employee by agreement with the employer, then commences, for a specified period, a leave of absence with  pay  or vacation  with  pay, at the conclusion of which the employee will return to work with the same employer. If notwithstanding  such  agreement  the employee  does  not  so  return,  his employment shall be deemed to have terminated on the last day of the period of such paid leave  of  absence or such paid vacation.   8.  "Injury" and "sickness" mean accidental injury, disease, infection or illness or incapacitation as a result of being an organ  donor  in  a transplant operation.   9.  A.  "Disability"  during  employment  means  the  inability  of an employee, as a result of injury or sickness not arising out  of  and  in the  course  of  an  employment,  to  perform  the regular duties of his employment or the duties of any other employment which his employer  may offer him at his regular wages and which his injury or sickness does not prevent  him from performing. "Disability" during unemployment means the inability of an employee, as a result of injury or sickness not  arising out  of and in the course of an employment, to perform the duties of any employment  for  which  he  is  reasonably  qualified  by  training  and experience.   B.  "Disability"  also  includes disability caused by or in connection with a pregnancy.   10. "Benefits" means the money allowances during disability payable to an employee who is eligible to receive such  benefits,  as  provided  in this article.   11.  "Carrier"  shall  include:  the  state  fund, stock corporations, mutual corporations and reciprocal insurers which insure the payment  of  benefits   provided   pursuant   to  this  article;  and  employers  and associations of employers or of employees  and  trustees  authorized  or permitted  to  pay  benefits  under  the provisions of this article. For purposes  of  this  chapter,  a  nonprofit  property/casualty  insurance company which is licensed pursuant to  subsection  (b)  of  section  six thousand seven hundred four of the insurance law shall be deemed a stock corporation and a nonprofit property/casualty insurance company which is licensed  as  a reciprocal insurer pursuant to subsection (c) of section six thousand seven hundred four of the insurance law shall be  deemed  a reciprocal insurer.   12.  "Wages"  means  the money rate at which employment with a covered employer is recompensed under the contract of hiring  with  the  covered employer and shall include the reasonable value of board, rent, housing, lodging, or similar advantage received under the contract of hiring.   13.  "Average weekly wage." For the purpose of computing the amount of disability benefits of an employee  during  any  period  of  disability, "average  weekly wage" shall be 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 commencement of such disability, or the total wages of the last eight weeks or portion thereof immediately preceding and  excluding  the week  in  which the disability began, whichever is the higher amount, by the number of weeks or portion thereof of such employment. The  chairman may  by  regulation prescribe reasonable procedures to determine average weekly  wage,  including  procedures  in  lieu  of  the  foregoing   for determination  of  the  average  weekly  wage  of  a class or classes of employees,  and  may  authorize  reasonable  deviations  to   facilitate administration in the determination of average weekly wage of a class or classes of the employees of a covered employer.   In  the  event  the  employee  was  not  in the employment of his last covered employer during all  of  such  eight  weeks  and  if  the  above determination  results  in  an average weekly wage which does not fairly represent the normal earnings of such employee in all  employments  with covered   employers   during   such   eight   weeks,   there  may  be  a redetermination of average weekly wage to reflect  wages  received  from all covered employers during such eight week period. The chairman may by regulation prescribe reasonable procedures for such redetermination.   14.  "A  day  of  disability"  means any day on which the employee was prevented from performing work because of disability, including any  day which the employee uses for family leave, and for which the employee has not received his or her regular remuneration.   15.  "Family  leave"  shall  mean  any leave taken by an employee from work:   (a) to participate in  providing  care,  including  physical  or psychological  care,  for a family member of the employee made necessary by a serious health condition of the family member; or (b) to bond  with the  employee's  child  during the first twelve months after the child's birth, or the first twelve months after the placement of the  child  for adoption  or  foster  care  with  the  employee;  or  (c) because of any qualifying exigency as interpreted under the family  and  medical  leave act,  29  U.S.C.S  §  2612(a)(1)(e)  and  29 C.F.R. S.825.126(a)(1)-(8), arising out of the fact that the spouse,  domestic  partner,  child,  or parent  of  the  employee  is on active duty (or has been notified of an impending call or order to active duty)  in  the  armed  forces  of  the United States.   16.  "Child" means a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of  a  domestic partner, or the person to whom the employee stands in loco parentis.    17.  "Domestic  partner"  has the same meaning as set forth in section four of this chapter.   18.  "Serious  health condition" means an illness, injury, impairment, or physical or mental condition, including  transplantation  preparation and  recovery  from  surgery  related  to organ or tissue donation, that involves inpatient care in a hospital, hospice,  or  residential  health care  facility,  continuing  treatment  or  continuing  supervision by a health care provider. Continuing supervision by a health  care  provider includes a period of incapacity which is permanent or long term due to a condition  for  which  treatment  may  not be effective where the family member is under the continuing supervision of, but need not be receiving active treatment by, a health care provider.   19. "Parent"  means  a  biological,  foster,  or  adoptive  parent,  a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.   * 20.  "Family member" means a child, parent, grandparent, grandchild, spouse, or domestic partner as defined in this section.   * NB Effective until January 1, 2023   * 20. "Family member" means a child, parent, grandparent,  grandchild, sibling, spouse, or domestic partner as defined in this section.   * NB Effective January 1, 2023   21. "Grandchild" means a child of the employee's child.   22. "Health care provider" shall mean for the purpose of family leave, a  person  licensed  under  article  one hundred thirty-one, one hundred thirty-one-B, one hundred  thirty-two,  one  hundred  thirty-three,  one hundred  thirty-six, one hundred thirty-nine, one hundred forty-one, one hundred forty-three, one hundred forty-four,  one  hundred  fifty-three, one  hundred fifty-four, one hundred fifty-six or one hundred fifty-nine of the education law or a person licensed under the public  health  law, article  one  hundred  forty of the education law or article one hundred sixty-three of the education law.   23. "Grandparent" means a parent of the employee's parent.   * 24. "Sibling" means a biological or adopted sibling, a  half-sibling or stepsibling.   * NB Effective January 1, 2023