2023 New York Laws › WKC - Workers' Compensation › Article 9 - Disability Benefits › 205 - Disabilities, Family Leave and Periods for Which Benefits Are Not Payable.

§  205.  Disabilities, family leave and periods for which benefits are
not payable. 1. No employee shall be  entitled  to  disability  benefits
under this article:
(a)  For  more  than  twenty-six weeks minus any days taken for family
leave during any fifty-two consecutive calendar weeks during a period of
fifty-two consecutive  calendar  weeks  or  during  any  one  period  of
disability, or for more than twenty-six weeks;
(b) for any period of disability during which an employee is not under
the  care  of  a  duly  licensed physician or with respect to disability
resulting from a condition of the foot which may lawfully be treated  by
a  duly  registered  and licensed podiatrist of the state of New York or
with respect to a  disability  resulting  from  a  condition  which  may
lawfully  be  treated  by a duly registered and licensed chiropractor of
the state of New York or with respect to a disability resulting  from  a
condition  which  may  lawfully be treated by a duly licensed dentist of
the state of New York or with respect to a disability resulting  from  a
condition  which  may  lawfully  be  treated  by  a  duly registered and
licensed psychologist of the state of New York  or  with  respect  to  a
disability resulting from a condition which may lawfully be treated by a
duly  certified  nurse midwife, for any period of such disability during
which an employee is neither  under  the  care  of  a  physician  nor  a
podiatrist, nor a chiropractor, nor a dentist, nor a psychologist, nor a
certified  nurse  midwife; and for any period of disability during which
an employee who adheres to the faith  or  teachings  of  any  church  or
denomination  and who in accordance with its creed, tenets or principles
depends for healing upon prayer through spiritual  means  alone  in  the
practice  of  religion,  is  not  under  the care of a practitioner duly
accredited by the church or denomination,  and  provided  such  employee
shall submit to all physical examinations as required by this chapter.
2.  No  employee shall be entitled to family leave benefits under this
article:
(a) For more than twelve weeks, or the maximum duration  permitted  as
set  forth  in  paragraph  (a) of subdivision two of section two hundred
four of this article, during a period of fifty-two consecutive  calendar
weeks,  or  for  any  period in which the family leave combined with the
disability benefits previously paid exceeds twenty-six weeks during  the
same fifty-two consecutive calendar weeks;
(b)  For  any  period  of  family leave wherein the notice and medical
certification as prescribed by the chair has  not  been  filed.  At  the
discretion  of  the  chair  or  chair's designee pursuant to section two
hundred twenty-one of  this  article,  the  family  member  who  is  the
recipient of care may be required to submit to a physical examination by
a  qualified health care provider. Such examination shall be paid for by
the carrier; and
(c) As a condition of an employee's initial receipt  of  family  leave
benefits  during  any  fifty-two  consecutive calendar weeks in which an
employee is eligible for  these  benefits,  an  employer  may  offer  an
employee  who  has  accrued  but  unused vacation time or personal leave
available at the time of use of available family leave to choose whether
to charge all or part of the family leave time  to  accrued  but  unused
vacation  or  personal  leave, and receive full salary, or to not charge
time to accrued but unused vacation or personal leave, and  receive  the
benefit  as  set  forth  in section two hundred four of this article. An
employer that pays full salary during  a  period  of  family  leave  may
request   reimbursement   in   accordance   with   section  two  hundred
thirty-seven of this article. With the election of  either  option,  the
employee   shall  receive  the  full  protection  of  the  reinstatement
provision set forth in section two hundred three-b of this article,  and

shall  concurrently  use  available  family  medical  leave act and paid
family leave credits. In no event can an employee utilize  family  leave
beyond  twelve  weeks, or the maximum duration permitted as set forth in
paragraph  (a)  of  subdivision  two of section two hundred four of this
article, per any fifty-two week period set forth in this  article.  This
paragraph  may not be construed in a manner that relieves an employer of
any duty of collective bargaining the employer may have with respect  to
the subject matter of this paragraph.
3.  No  employee  shall  be  entitled  to  disability  or family leave
benefits under this article:
(a) for any disability occasioned  by  the  wilful  intention  of  the
employee to bring about injury to or the sickness of himself or another,
or  resulting  from any injury or sickness sustained in the perpetration
by the employee of an illegal act;
(b) for any day  of  disability  or  family  leave  during  which  the
employee performed work for remuneration or profit;
(c)  for  any day of disability or family leave for which the employee
is entitled to receive from his or her employer, or from a fund to which
the employer has contributed, remuneration or maintenance in  an  amount
equal to or greater than that to which he or she would be entitled under
this  article;  but  any voluntary contribution or aid which an employer
may make to an employee or any supplementary benefit paid to an employee
pursuant to the provisions of a collective bargaining agreement or  from
a  trust fund to which contributions are made pursuant to the provisions
of  a  collective  bargaining  agreement  shall  not  be  considered  as
continued remuneration or maintenance for this purpose;
(d)  for  any  period  in respect to which such employee is subject to
suspension or  disqualification  of  the  accumulation  of  unemployment
insurance benefit rights, or would be subject if he or she were eligible
for  such  benefit  rights,  except for ineligibility resulting from the
employee's disability;
(e) for any disability due to any act of war, declared or undeclared;
(f) for any disability or family leave commencing before the  employee
becomes eligible to benefits under this section.
4.  An  employee  may  not  collect  benefits  concurrently under both
subdivisions one and two of this section.
5. In any case in which the necessity for family leave is  foreseeable
based  on an expected birth or placement, the employee shall provide the
employer with not less than thirty days notice before the date the leave
is to begin, of the employee's intention to take family leave under this
article, except that if the date of  the  birth  or  placement  requires
leave to begin in less than thirty days, the employee shall provide such
notice  as is practicable. In any case in which the necessity for family
leave is foreseeable based on planned medical  treatment,  the  employee
shall provide the employer with not less than thirty days notice, before
the  date  the  leave  is  to  begin, of the employees intention to take
family leave under  this  article,  except  that  if  the  date  of  the
treatment requires leave to begin in less than thirty days, the employee
shall provide such notice as is practicable.