N.Y. Workers' Compensation Law § 205: Disabilities, family leave and periods for which benefits are not payable

§ 205. Disabilities, family leave and periods for which benefits are

not payable. 1. No employee shall be entitled to disability benefits

under this article:

(a) For more than twenty-six weeks minus any days taken for family

leave during any fifty-two consecutive calendar weeks during a period of

fifty-two consecutive calendar weeks or during any one period of

disability, or for more than twenty-six weeks;

(b) for any period of disability during which an employee is not under

the care of a duly licensed physician or with respect to disability

resulting from a condition of the foot which may lawfully be treated by

a duly registered and licensed podiatrist of the state of New York or

with respect to a disability resulting from a condition which may

lawfully be treated by a duly registered and licensed chiropractor of

the state of New York or with respect to a disability resulting from a

condition which may lawfully be treated by a duly licensed dentist of

the state of New York or with respect to a disability resulting from a

condition which may lawfully be treated by a duly registered and

licensed psychologist of the state of New York or with respect to a

disability resulting from a condition which may lawfully be treated by a

duly certified nurse midwife, for any period of such disability during

which an employee is neither under the care of a physician nor a

podiatrist, nor a chiropractor, nor a dentist, nor a psychologist, nor a

certified nurse midwife; and for any period of disability during which

an employee who adheres to the faith or teachings of any church or

denomination and who in accordance with its creed, tenets or principles

depends for healing upon prayer through spiritual means alone in the

practice of religion, is not under the care of a practitioner duly

accredited by the church or denomination, and provided such employee

shall submit to all physical examinations as required by this chapter.

2. No employee shall be entitled to family leave benefits under this

article:

(a) For more than twelve weeks, or the maximum duration permitted as

set forth in paragraph (a) of subdivision two of section two hundred

four of this article, during a period of fifty-two consecutive calendar

weeks, or for any period in which the family leave combined with the

disability benefits previously paid exceeds twenty-six weeks during the

same fifty-two consecutive calendar weeks;

(b) For any period of family leave wherein the notice and medical

certification as prescribed by the chair has not been filed. At the

discretion of the chair or chair's designee pursuant to section two

hundred twenty-one of this article, the family member who is the

recipient of care may be required to submit to a physical examination by

a qualified health care provider. Such examination shall be paid for by

the carrier; and

(c) As a condition of an employee's initial receipt of family leave

benefits during any fifty-two consecutive calendar weeks in which an

employee is eligible for these benefits, an employer may offer an

employee who has accrued but unused vacation time or personal leave

available at the time of use of available family leave to choose whether

to charge all or part of the family leave time to accrued but unused

vacation or personal leave, and receive full salary, or to not charge

time to accrued but unused vacation or personal leave, and receive the

benefit as set forth in section two hundred four of this article. An

employer that pays full salary during a period of family leave may

request reimbursement in accordance with section two hundred

thirty-seven of this article. With the election of either option, the

employee shall receive the full protection of the reinstatement

provision set forth in section two hundred three-b of this article, and

shall concurrently use available family medical leave act and paid

family leave credits. In no event can an employee utilize family leave

beyond twelve weeks, or the maximum duration permitted as set forth in

paragraph (a) of subdivision two of section two hundred four of this

article, per any fifty-two week period set forth in this article. This

paragraph may not be construed in a manner that relieves an employer of

any duty of collective bargaining the employer may have with respect to

the subject matter of this paragraph.

3. No employee shall be entitled to disability or family leave

benefits under this article:

(a) for any disability occasioned by the wilful intention of the

employee to bring about injury to or the sickness of himself or another,

or resulting from any injury or sickness sustained in the perpetration

by the employee of an illegal act;

(b) for any day of disability or family leave during which the

employee performed work for remuneration or profit;

(c) for any day of disability or family leave for which the employee

is entitled to receive from his or her employer, or from a fund to which

the employer has contributed, remuneration or maintenance in an amount

equal to or greater than that to which he or she would be entitled under

this article; but any voluntary contribution or aid which an employer

may make to an employee or any supplementary benefit paid to an employee

pursuant to the provisions of a collective bargaining agreement or from

a trust fund to which contributions are made pursuant to the provisions

of a collective bargaining agreement shall not be considered as

continued remuneration or maintenance for this purpose;

(d) for any period in respect to which such employee is subject to

suspension or disqualification of the accumulation of unemployment

insurance benefit rights, or would be subject if he or she were eligible

for such benefit rights, except for ineligibility resulting from the

employee's disability;

(e) for any disability due to any act of war, declared or undeclared;

(f) for any disability or family leave commencing before the employee

becomes eligible to benefits under this section.

4. An employee may not collect benefits concurrently under both

subdivisions one and two of this section.

5. In any case in which the necessity for family leave is foreseeable

based on an expected birth or placement, the employee shall provide the

employer with not less than thirty days notice before the date the leave

is to begin, of the employee's intention to take family leave under this

article, except that if the date of the birth or placement requires

leave to begin in less than thirty days, the employee shall provide such

notice as is practicable. In any case in which the necessity for family

leave is foreseeable based on planned medical treatment, the employee

shall provide the employer with not less than thirty days notice, before

the date the leave is to begin, of the employees intention to take

family leave under this article, except that if the date of the

treatment requires leave to begin in less than thirty days, the employee

shall provide such notice as is practicable.