N.Y. Comp. Codes R. & Regs. tit. 12 § 355.9

Current through Register Vol. 46, No. 16, April 17, 2024

Section 355.9 - Paid family leave definitions

(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.

(b) The definitions included in this section may be used in this Title when context so requires.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 355.9

Adopted New York State Register July 19, 2017/Volume XXXIX, Issue 29, eff.7/19/2017