N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 358-3.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 358-3.1 - Benefits "at least as favorable" construed

(a) On or after May 1, 1989 and prior to July 1, 1989:

(1) Benefits under any plan within the provisions of sections 358-1.1(b)(1), 358-1.2(b) and 358-2.1 of this Part may, in aggregate, be deemed to be "at least as favorable," provided:

(i) the aggregate benefits for each employee, including cash benefits and other benefits directly related to disability, are equivalent to or greater than the disability benefits under section 204 of the Workers' Compensation Law; and

(ii) the cash disability benefits meet the minimum requirements under paragraph (2) of this subdivision.

(2) The following are minimum requirements for the cash disability benefits provided under such plans:

(i) a weekly cash benefit rate at least:

(a) $102 per week for an employee whose average weekly wage is $204 or more;

(b) fifty percent of average weekly wage for an employee whose average weekly wage is $44 or more and less than $204;

(c) $22 per week for an employee whose average weekly wage is $40 or more and less than $44;

(d) $20 per week for an employee whose average weekly wage is $20 or more and less than $40; and

(e) average weekly wage for an employee whose average weekly wage is less than $20;

(ii) a waiting period of not more than seven days of disability;

(iii) a duration benefit period of at least 13 weeks of disability during a period of 52 consecutive calendar weeks or during any one period of disability, unless the plan provides for full wage continuance in which event there shall be a duration benefit period of at least eight weeks; and

(iv) cash disability benefits payable periodically, exclusive of all other benefits, of a value at least equal to 60 percent of the disability benefits payable under section 204 of the Workers' Compensation Law.

(3) The chairman shall, by rule, prescribe a method for determining whether the aggregate benefits and the cash disability benefits under a plan meet the requirements of paragraph (1) of this subdivision.

(b) On or after July 1, 1989:

(1) Cash disability benefits under any plan within the provisions of sections 358-1.1(b)(1), 358-1.2(b) and 358-2.1 of this Part may be deemed "at least as favorable" provided:

(i) the weekly disability benefit for each employee is equivalent to or greater than the weekly disability benefit provided by section 204 (2) of the Workers' Compensation Law;

(ii) the waiting period is no more than seven consecutive days of disability; and

(iii) the duration of the benefit period is at least 26 weeks of disability during a period of 52 consecutive calendar weeks or during any one period of disability.

(2) Family leave benefits under any plan within the provisions of subdivisions (4) and (5) of section 211 of the Workers' Compensation Law, may, in aggregate, be deemed to be "at least as favorable," provided:

(i) the aggregate benefits for each employee, including cash benefits and other benefits directly related to the qualifying event for family leave, are equivalent to or greater than the family leave benefits under section 204 of the Workers' Compensation Law; and

(ii) the cash family leave benefits meet the minimum requirements under paragraph (3) of this subdivision.

(3) The following are minimum requirements for the cash family leave benefits provided under such plans:

(i) when the employee is eligible (after 26 weeks or 175 days) there is no waiting period for family leave benefits;

(ii) a weekly cash benefit rate:

(a) on or after January 1, 2018 at least 50 percent of the employee's average weekly wage or 50 percent of the State average weekly wage, whichever is less;

(b) on or after January 1, 2019 at least 55 percent of the employee's average weekly wage or 55 percent of the State average weekly wage, whichever is less;

(c) on or after January 1, 2020 at least 60 percent of employee's average weekly wage or 60 percent of the State average weekly wage, whichever is less; and

(d) on or after January 1st of each succeeding year, at least 67 percent of the employee's average weekly wage or 67 percent of the State average weekly wage, whichever is less;

(iii) a duration benefit period:

(a) on or after January 1, 2018, of at least 8 weeks during any 52 week calendar period;

(b) on or after January 1, 2019, of at least 10 weeks during any 52 week calendar period; and

(c) on or after January 1, 2021, of at least 12 weeks during any 52 week calendar period.

(4) The chair shall, by rule, prescribe a method for determining whether the aggregate benefits and the cash disability and family leave benefits under a plan meet the requirements of this section.

N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 358-3.1

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