New York is one of a handful of states that require employers to provide disability benefits coverage to employees for an off-the-job injury or illness. Coverage for disability benefits can be obtained through a disability benefits insurance carrier who is authorized by New York State Department of Financial Services to write such policies. Large employers may opt to become authorized by the Board to self-insure (WCL §211).
The Disability Benefits Law (Article 9 of the WCL) provides weekly cash benefits to replace, in part, wages lost due to injuries or illnesses that do not arise out of or in the course of employment (WCL §204). Medical care is the responsibility of the employee and is not paid for by the employer or insurance carrier.
Disability benefits are temporary cash benefits paid to an eligible employee who is disabled by an off-the-job injury or illness. Disability benefits are also paid to an unemployed worker to replace unemployment insurance benefits lost because of illness or injury (WCL §207).
- Benefit is 50 percent of the employee's average weekly wage for the last eight weeks worked, but no more than the maximum benefit allowed, currently $170 per week (WCL §204). If counting the last week in which the disability began lowers the benefit rate, it is not included in determining average weekly wage.
- Benefits paid by the employer or insurance carrier are subject to Social Security and Medicare taxes.
- Benefits are paid for a maximum of 26 weeks of disability during any 52 consecutive week period (WCL §205). An employee cannot collect disability benefits and Paid Family Leave benefits at the same time. The total combined disability leave and Paid Family Leave in any 52 week period may not exceed 26 weeks.
Employee must be under the care of a physician, chiropractor, podiatrist, psychologist, dentist, or certified nurse midwife in order to qualify for disability benefits.
becomes disabled while employed:
- There is a 7-day waiting period for which no benefits are paid. Benefits begin on the eighth consecutive day of disability (WCL §208).
- A "day of disability" is one on which the employee was prevented from performing work because of disability and for which they have not received regular wages or remuneration. The employee is ineligible for disability benefits if performing any type of work for which wages or profit were received, even if performed at home.
becomes disabled while unemployed:
- If employee has been unemployed for less than four weeks:
- Disability insurance benefits are provided by last employer's disability insurance carrier.
- The seven day waiting period applies.
- If employee has been unemployed for more than four weeks and is collecting unemployment insurance benefits:
- The Workers' Compensation Board Special Fund for Disability will provide disability benefits.
- No waiting period is required.
- Employee may not collect unemployment benefits and disability benefits for the same period of time.
disability is from an auto accident:
- Employee is entitled to disability benefits for an injury incurred in an auto accident. However, the amount of the disability benefit may reduce any no-fault insurance benefit they are eligible to receive.
still disabled, but benefits have stopped:
- If employee has received less than 26 weeks of benefits and is still disabled and has not received a Notice of Rejection, employee should submit further medical evidence to request additional benefits.
quits their job:
- Termination of employment may affect an employee's right to disability benefits.
Employer/Insurance Carrier requests examination by a health care provider:
The employer/insurance carrier may designate a health care provider to examine the employee. Employee must submit to requested examinations under the following conditions:
- Exams may occur at intervals, but not more than once a week.
- Does not pay for the exams.
- Exams occur at a reasonable time and place.
- Refusal to submit to an exam, may jeopardize benefits.
Statement of Rights
An employer must supply an employee who has been disabled more than seven days with a Statement of Rights - Disability Benefits Law (Form DB-271S), within five days of learning that the employee is disabled (WCL §229).
Pregnancy and Maternity Leave
Employees who are pregnant are eligible for disability benefits for four weeks before their due date and six weeks after giving birth (eight weeks if they delivered by Caesarian section).
Employees may be entitled to further disability benefits up to the maximum 26 weeks with documentation from their medical care provider.
Either way, they will need to submit a medical report completed by a doctor or certified nurse midwife stating their disability is due to or related to pregnancy or recovery from delivery. Physical and mental health conditions due to or related to their pregnancy or post-partum recovery may be eligible for disability benefits.
Note: Benefits are not payable for any period an employee is unable to work due to elective surgery (such as an elective sterilization procedure).
Differences between Disability Benefits and Paid Family Leave
- Only the birth mother is eligible for disability leave for the period immediately after the birth of a child.
- Paid Family Leave begins after the birth and is not available for prenatal conditions.
- A parent may take paid family leave during the first 12 months following the birth, adoption, or fostering of a child.
- You cannot collect disability benefits and paid family leave benefits at the same time.
- Your combined total disability leave and paid family leave in any 52 week period may not exceed 26 weeks.