§ 213 — Non-compliance or default

§ 213. Non-compliance or default. 1. Whenever a covered employer does\nnot comply with this article by providing for the payment of disability\nand family leave benefits to his or her employees in one or more of the\nways provided in section two hundred eleven of this article or whenever\na carrier fails to pay the benefits required by this article to\nemployees of a covered employer, then such employer shall be fully and\ndirectly liable to each of his or her employees for the payment of\nbenefits provided by this article. The amount of the benefits to which\nemployees of such employers are entitled under this article and\nattendance fees of any attending physicians or attending podiatrists or\nhealth care provider fixed pursuant to subdivision two of section two\nhundred thirty-two of this article shall, on order of the chair, be paid\nout of the fund established under section two hundred fourteen of this\narticle. In case of non-compliance of the employer, such employer shall\nforthwith pay to the chair, for credit to the fund, the sum so expended\nor one percent of his or her payroll for his or her employees in\nemployment during the period of non-compliance, whichever is greater;\nprovided, however, that if it shall appear to the satisfaction of the\nchair that the default in payment of benefits or the non-compliance of\nthe employer otherwise with his or her obligation under this article was\ninadvertent, the chair may fix the sum payable in such case for\nnon-compliance or default at the amount paid out of the fund and a sum\nless than one percent of such payroll, and in addition the penalties for\nnon-compliance imposed under this article. In case of failure of the\ncarrier to pay benefits, the employer shall forthwith pay to the chair,\nfor credit to the fund, the sum so expended.\n 2. Where a carrier authorized by the superintendent of financial\nservices to do business in this state has failed to pay benefits on\nbehalf of an employer pursuant to this article solely because an order\nof rehabilitation, conservation or liquidation has been issued by a\ncourt of competent jurisdiction of this or any other state or\njurisdiction, the provisions of subdivision one of this section shall\nnot apply as they relate to: (a) the payment of benefits to an employee\nif the policy of the employer's carrier is subject to the protection\nafforded by any guaranty fund pursuant to the insurance law; or (b) the\nreimbursement to the fund, created under section two hundred fourteen of\nthis article, by an employer whose carrier has failed to pay benefits.\n 3. The provisions of section one hundred forty-one-b of this chapter\nshall not apply to violations of this section after January first, two\nthousand eighteen and before January first, two thousand twenty.\nThereafter, in the event an employer is subject to debarment solely due\nto a penalty for violation of this section, the chair may, in the\ninterests of justice, restore the employer's eligibility to submit a bid\non or be awarded any public work contract or subcontract. The chair may\nexercise this authority only if it is the employer's first time\nviolation of section one hundred forty-one-b of this chapter; the\nemployer is not liable for any outstanding workers' compensation,\ndisability or family leave claims as a result of the lack of coverage;\nand the employer has paid all fines, assessments, and penalties\nassociated with the lack of coverage.\n