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.
A "day of disability" is one on which the employee was prevented from performing work because of disability and for which the employee has not received regular wages or remuneration. The employee is ineligible for disability benefits if they perform any type of work for which wages or profit were received, even if performed at home.
If an employee is unemployed, disability benefits may also be paid to replace unemployment insurance benefits lost because of illness or injury (WCL §207).
Coverage for disability benefits can be obtained through a disability benefits insurance carrier who is authorized by New York State to write such policies. Large employers may opt to become authorized by the Board to self-insure (WCL ‚211).
Disability benefits are temporary cash benefits paid to an eligible employee, when they are disabled by an off-the-job injury or illness.
- Disability benefits are equal to 50 percent of the employee's average weekly wage for the last eight weeks worked, with a maximum benefit of $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.
- There is a 7-day waiting period during which no benefits are paid. Benefits begin on the eighth consecutive day of disability (WCL §208).
- 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.
- If the employee has received less than 26 weeks of benefits and is still disabled and has not received a Notice of Rejection, the employee should submit further medical evidence to request additional benefits.
- Disability benefits paid by the employer or insurance carrier are subject to Social Security and Medicare taxes.
An employee must be under the care of a physician, chiropractor, podiatrist, psychologist, dentist, or certified nurse midwife in order to qualify for disability benefits.
If an employee quits their job it may affect their right to disability benefits.
Benefits are not payable for any period employee is unable to work due to elective surgery (such as an elective sterilization procedure).
What if an employee becomes disabled while unemployed?
An employee who becomes disabled while they are unemployed may still be eligible for disability benefits. An employee may not collect unemployment benefits and disability benefits for the same period of time.
The length of time an employee has been unemployed determines who pays the disability benefits:
- If an 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 an 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.
Disability From an Auto Accident:
- An 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 you are eligible to receive.
You are collecting Social Security retirement benefits:
- You can receive disability benefits and Social Security retirement benefits at the same time.
Pregnancy and Maternity Leave
Employees disabled due to pregnancy, may be entitled to up to 26 weeks of disability benefits.
To claim pregnancy-related disability benefits a medical report completed by a doctor or certified nurse midwife is required. The report must state that the disability is due to pregnancy.
If the disability started more than four weeks before the anticipated birth date OR lasts more than four to six weeks after the actual birth date the medical report should describe specific pregnancy complications, rather than just general prognosis.
Differences between Disability Benefits and Paid Family Leave
After giving birth, the birth parent may be eligible for both short-term disability benefits and Paid Family Leave. While the two benefits cannot be taken at the same time, eligible employees can choose how they can use both benefits to support the needs of their families.
For example, if a birth parent qualifies for short-term disability after giving birth, they can choose to:
- Immediately take all or any portion of their available short-term disability weeks and then take Paid Family Leave at any time within the first 12 months; or,
- Take Paid Family Leave immediately, without taking any short-term disability.
There may be other times when an employee needs to use both short-term disability and Paid Family Leave in the same year for different qualifying events. In all cases, employees cannot take more than 26 weeks of combined short-term disability and Paid Family Leave benefits in a 52-week period.
If an employee plans to use both short-term disability and Paid Family Leave, the employee must complete a separate request for each. These are separate benefits, which cannot be taken at the same time, and require separate documentation from the employee and employer.
Employer/Insurance Carrier requests examination by a health care provider:
- Your employer/insurance carrier may designate a health care provider to examine you. You must submit to requested examinations under the following conditions:
- Exams may occur at intervals, but not more than once a week.
- You do not pay for the exams.
- Exams occur at a reasonable time and place.
- If you refuse to submit to an exam, you may jeopardize your benefits.
Contact the Board
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