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

Current through Register Vol. 46, No. 28, July 10, 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.