2023 New York Laws › WKC - Workers' Compensation › Article 9 - Disability Benefits › 201 - Definitions.

§ 201. Definitions. As used in this article:
1.  "Board"  means  the workers' compensation board created under this
chapter.
2. "Chairman" means the chairman of the workers' 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,
sibling, spouse, or domestic partner as defined in this section.
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.