New York Temporary Disability - Legislative Guidance

Table of Contents

Overview
Employer Coverage
Employee Eligibility
Qualifying Absence Reasons and Leave Duration
How Leave Can be Taken
Certification Requirements
Pay and Benefits
Interaction with Other Laws
Employee and Employer Responsibilities
Resources

Overview

New York Disability is a state-mandated program managed by the New York Worker’s Compensation Board. Eligible employees in New York may receive partial benefit payments when the employee experiences their own serious health condition, not work-related, or pregnancy, for up to 26 weeks in a benefit year. Disability can only be taken consecutively in one week periods or more.

There is no job protection offered, but there are discrimination protections for those employees who have requested or been approved for New York Disability.

The state of New York requires the management of decisions and payments to come from a third-party insurance carrier or the employer may apply for an equivalent program letting the employer render decision on benefit payment. New York Disability is funded through employer contributions, however the employer may offset the costs through employee payroll deductions.

AbsenceSoft Policies

New York Temporary Disability is configured in AbsenceSoft with the policy code and naming below:

• New York Temporary Disability NY-STD

Legislation codes and statues

The information presented in the guidance relates to the following legislative codes, links to the specific legislation can be found within the ‘Resources’ section of this document. New York Temporary Disability is also referenced as New York Disability/NYDBL:

• New York Workers Compensation Law, Chapter 67, Article 9, Sections 200-242 (N.Y. Workers' Comp. Law §200 - 242)

• New York Codes Rules and Regulations, Title 12, Chapter 5, Article 1, Section 355-364 (N.Y. Comp. Codes R. & Regs. Title 12 §355 -364)

Employer Coverage

Employer has one or more employees within New York employment, on each of the 30 days in any calendar year. Once the threshold of 30 employees is met, it must be held for a calendar year.

Exclusions:

• State, municipal, or local government

• Political subdivisions;

• Public authorities.

💡 Employers who have domestic or personal service workers in a private home have different employer coverage requirements.

Employee Eligibility

An employee who works for a covered employer and has at least 4 consecutive work weeks of employment, or the nature of the business may require an employee to be available on a day-to-day basis, have worked their normal workdays available over 4 or more consecutive weeks.¹

Qualifying Absence Reasons and Leave Duration

An employee may take up to 26 weeks in a 52-week rolling backward period measured from the date the employee first receives benefits.

💡 The 26 week entitlement is depending on whether or not the employee has also taken New York Paid Family Leave(NYPFL). The maximum entitlement for both combined is 26 weeks.² If employee has taken 20 weeks of NYDBL, they only have 6 weeks of NYDBL or NYPFML available.

Medical Care

• Employee Health Condition: Care for the employee’s own serious health condition. Elective surgeries are not covered.

• Pregnancy/Maternity: Pregnancy-related disability( complications arising out of pregnancy or childbirth, recovery from childbirth, and post-pregnancy disabilities such as post-partum may be covered).

How Leave Can be Taken

Employees may take leave consecutively for any qualifying reason.

• Consecutive leave: A continuous, uninterrupted period of leave taken for a single qualifying reason.

Certification Requirements

Certification forms are given to employees when they file claims through the third-party vendor, the employee may visit the state website or their employer may also offer the form. Employers do have information they must complete within 3 business days and return back to the employee, and/or the vendor upon completion.

Decisions on the claim should be made within 18 calendar days from completed submission. Employers should contact their chosen third-party vendor to determine where they can view the decisions on a claim.

The law allows the insurance carrier to request a designated healthcare provider examine the employee with limitations. The employee can only be examined no more than once a week, the employee does not pay for the requested examinations, and the designated healthcare provider has appointment availability and in proximity to the employee’s needs. If an employee refuses such examinations, they can have their NYSTD denied.

Pay and Benefits

Where state pay benefits are involved with other law interactions, such as state mandated sick pay, employers will want to consider where PTO/employer pay benefit application should occur. Employees must meet a consecutive 7-day waiting period before benefits will be paid.

Amount of Pay

NYSTD is a flat amount capped at a percentage with a maximum benefit allowed per week. The maximum weekly benefit is low given New York’s minimum wage, and payments have largely remained unchanged year over year. Most employees filing will receive the maximum amount.

Employees may receive 50% of their wages with a cap of $170 per week.

Use of Paid Time Off (PTO)/Employer Benefits

Nothing prevents an employee from using any PTO or other employer benefit to top-off to their regular salary.

Job Protection

No protection is spelled out in the law; however, employers should use caution as there are discrimination protections.

Other Protections

Employees are protected from discrimination for exercising their rights under NYSTD.

Benefits

The law does not speak to benefit protections, however, employers should use caution due to the discrimination protections.

Interaction with Other Laws

Where an employee meets the definition of family member, qualifying absence reason, or serious health condition, the state and federal laws may interact. Accommodations that are not leave related, would not run concurrently with other state or federal leave laws.

Family and Medical Leave Act (FMLA)

FMLA and NYSTD may run concurrently.

New York Bone Marrow and Blood Donation (NYDONOR)

NYDONOR may run concurrently with NYSTD in limited circumstances.

New York Domestic Violence Leave (NYDOM)

NYDOM and NYSTD may run concurrently depending on the circumstances and reasoning for NYDOM.

New York Paid Family Leave (NYPFL)

NYPFL will not run concurrently with NYSTD.

Pregnant Workers Fairness Act (PWFA)

PWFA and NYSTD may run concurrently.

Americans with Disabilities Act (ADA)

ADA and NYSTD may run concurrently.

Unemployment

NYSTD does not run with an employee collecting unemployment pay benefits. Those wishing to file for NYSTD following unemployment insurance must follow special claim filing requirements.

Worker’s Compensation

NYSTD does not run with an employee collecting worker’s compensation pay benefits.

Employee and Employer Responsibilities

Employee Responsibilities

• File a claim within 30 days of event;

• Complete and submit the required certification information;

• Give the employer their portion of the claim form;

• Provide notice to employer;

• Inform employer if working one or more jobs to adjust any payroll contributions towards DBL;

• Follow employer policies and procedures.

Employer Responsibilities

• Posting requirements are as follows and all posters must be a place that is conspicuous/frequented by employees:

  • Notice is provided by the Division of Worker’s Comp and can be found on their website

  • Includes the employer’s insurance carrier where applicable

  • Written notice must be provided when an employee is absent for 7 or more days, provide notice within 5 business days;

• Respond employer portions of certifications within 3 business days and inquiries;

• Choose a carrier if not self-funding, withhold required contributions, file proper records, and ensure no lapse in coverage;

• Adjust payroll contributions when an employee discloses they have more than one job and requests adjustments.

Resources

• New York Workers’ Compensation Board: https://www.wcb.ny.gov/content/main/DisabilityBenefits/lp_disability-benefits.jsp

• New York Worker’s Compensation law: https://www.nysenate.gov/legislation/laws/WKC/A9

Footnotes:

1. N.Y. Workers' Comp. Law § 203

2. N.Y. Workers' Comp. Law § 205.2(a)