§ 205 — Disabilities, family leave and periods for which benefits are not payable

§ 205. Disabilities, family leave and periods for which benefits are\nnot payable. 1. No employee shall be entitled to disability benefits\nunder this article:\n (a) For more than twenty-six weeks minus any days taken for family\nleave during any fifty-two consecutive calendar weeks during a period of\nfifty-two consecutive calendar weeks or during any one period of\ndisability, or for more than twenty-six weeks;\n (b) for any period of disability during which an employee is not under\nthe care of a duly licensed physician or with respect to disability\nresulting from a condition of the foot which may lawfully be treated by\na duly registered and licensed podiatrist of the state of New York or\nwith respect to a disability resulting from a condition which may\nlawfully be treated by a duly registered and licensed chiropractor of\nthe state of New York or with respect to a disability resulting from a\ncondition which may lawfully be treated by a duly licensed dentist of\nthe state of New York or with respect to a disability resulting from a\ncondition which may lawfully be treated by a duly registered and\nlicensed psychologist of the state of New York or with respect to a\ndisability resulting from a condition which may lawfully be treated by a\nduly certified nurse midwife, for any period of such disability during\nwhich an employee is neither under the care of a physician nor a\npodiatrist, nor a chiropractor, nor a dentist, nor a psychologist, nor a\ncertified nurse midwife; and for any period of disability during which\nan employee who adheres to the faith or teachings of any church or\ndenomination and who in accordance with its creed, tenets or principles\ndepends for healing upon prayer through spiritual means alone in the\npractice of religion, is not under the care of a practitioner duly\naccredited by the church or denomination, and provided such employee\nshall submit to all physical examinations as required by this chapter.\n 2. No employee shall be entitled to family leave benefits under this\narticle:\n (a) For more than twelve weeks, or the maximum duration permitted as\nset forth in paragraph (a) of subdivision two of section two hundred\nfour of this article, during a period of fifty-two consecutive calendar\nweeks, or for any period in which the family leave combined with the\ndisability benefits previously paid exceeds twenty-six weeks during the\nsame fifty-two consecutive calendar weeks;\n (b) For any period of family leave wherein the notice and medical\ncertification as prescribed by the chair has not been filed. At the\ndiscretion of the chair or chair's designee pursuant to section two\nhundred twenty-one of this article, the family member who is the\nrecipient of care may be required to submit to a physical examination by\na qualified health care provider. Such examination shall be paid for by\nthe carrier; and\n (c) As a condition of an employee's initial receipt of family leave\nbenefits during any fifty-two consecutive calendar weeks in which an\nemployee is eligible for these benefits, an employer may offer an\nemployee who has accrued but unused vacation time or personal leave\navailable at the time of use of available family leave to choose whether\nto charge all or part of the family leave time to accrued but unused\nvacation or personal leave, and receive full salary, or to not charge\ntime to accrued but unused vacation or personal leave, and receive the\nbenefit as set forth in section two hundred four of this article. An\nemployer that pays full salary during a period of family leave may\nrequest reimbursement in accordance with section two hundred\nthirty-seven of this article. With the election of either option, the\nemployee shall receive the full protection of the reinstatement\nprovision set forth in section two hundred three-b of this article, and\nshall concurrently use available family medical leave act and paid\nfamily leave credits. In no event can an employee utilize family leave\nbeyond twelve weeks, or the maximum duration permitted as set forth in\nparagraph (a) of subdivision two of section two hundred four of this\narticle, per any fifty-two week period set forth in this article. This\nparagraph may not be construed in a manner that relieves an employer of\nany duty of collective bargaining the employer may have with respect to\nthe subject matter of this paragraph.\n 3. No employee shall be entitled to disability or family leave\nbenefits under this article:\n (a) for any disability occasioned by the wilful intention of the\nemployee to bring about injury to or the sickness of himself or another,\nor resulting from any injury or sickness sustained in the perpetration\nby the employee of an illegal act;\n (b) for any day of disability or family leave during which the\nemployee performed work for remuneration or profit;\n (c) for any day of disability or family leave for which the employee\nis entitled to receive from his or her employer, or from a fund to which\nthe employer has contributed, remuneration or maintenance in an amount\nequal to or greater than that to which he or she would be entitled under\nthis article; but any voluntary contribution or aid which an employer\nmay make to an employee or any supplementary benefit paid to an employee\npursuant to the provisions of a collective bargaining agreement or from\na trust fund to which contributions are made pursuant to the provisions\nof a collective bargaining agreement shall not be considered as\ncontinued remuneration or maintenance for this purpose;\n (d) for any period in respect to which such employee is subject to\nsuspension or disqualification of the accumulation of unemployment\ninsurance benefit rights, or would be subject if he or she were eligible\nfor such benefit rights, except for ineligibility resulting from the\nemployee's disability;\n (e) for any disability due to any act of war, declared or undeclared;\n (f) for any disability or family leave commencing before the employee\nbecomes eligible to benefits under this section.\n 4. An employee may not collect benefits concurrently under both\nsubdivisions one and two of this section.\n 5. In any case in which the necessity for family leave is foreseeable\nbased on an expected birth or placement, the employee shall provide the\nemployer with not less than thirty days notice before the date the leave\nis to begin, of the employee's intention to take family leave under this\narticle, except that if the date of the birth or placement requires\nleave to begin in less than thirty days, the employee shall provide such\nnotice as is practicable. In any case in which the necessity for family\nleave is foreseeable based on planned medical treatment, the employee\nshall provide the employer with not less than thirty days notice, before\nthe date the leave is to begin, of the employees intention to take\nfamily leave under this article, except that if the date of the\ntreatment requires leave to begin in less than thirty days, the employee\nshall provide such notice as is practicable.\n