PART III. 
PROVISION FOR TEMPORARY DISABILITY



INSURANCE
BENEFITS



 



§392-41  Provision for payment of benefits. 
(a)  An employer or an association of employers shall secure temporary
disability benefits for their employees in one or more of the following ways:



(1)  By insuring and keeping insured the payment of
temporary disability benefits with any stock, mutual, reciprocal or other
insurer authorized to transact the business of disability insurance in the
State; or



(2)  By depositing and maintaining with the state
director of finance, securities, or the bond of a surety company authorized to
transact business in the State, as are satisfactory to the director securing
the payment by the employer of temporary disability benefits according to the
terms of this chapter; or



(3)  Upon furnishing satisfactory proof to the
director of the employer's or its solvency and financial ability to pay the
temporary disability benefits herein provided, no insurance or security or
surety bond shall be required, and the employer shall make payments directly to
the employer's employees, as they may become entitled to receive the same under
the terms and conditions of this chapter; or



(4)  By a plan, entitling employees to cash benefits
or wages during a period of disability, in existence on the effective date of
this chapter.



(A)  If the employees of an employer or any
class or classes of such employees are entitled to receive disability benefits
under a plan or agreement which remains in effect on January 1, 1970, the
employer, subject to the requirements of this section, shall be relieved of
responsibility for making provision for benefit payments required under this
chapter until the earliest date, determined by the director for the purposes of
this chapter, upon which the employer has the right to discontinue the plan or
agreement or to discontinue the employer's contributions toward the cost of the
temporary disability benefits.  Any plan or agreement referred to in this
subparagraph may be extended, with or without modification, by agreement or
collective bargaining between the employer or employers or an association of
employers and an association of employees; provided the benefits under the plan
or agreement, as extended or modified, are found by the director to be at least
as favorable as the disability benefits required by this chapter.



(B)  Any other plan or agreement in existence
on January 1, 1970, which the employer may, by the employer's sole act,
terminate at any time, or with respect to which the employer is not obligated
to continue for any period to make contributions, may be accepted by the
director as satisfying the obligation to provide for the payment of benefits
under this chapter if the plan or agreement provides benefits at least as
favorable as the disability benefits required by this chapter and does not
require contributions of any employee or of any class or classes of employees
in excess of the amount authorized in section 392-43, except by agreement and
provided the contribution is reasonably related to the value of the benefits as
determined by the director.  The director may require the employer to enter
into an agreement in writing with the director that until the employer shall
have filed written notice with the director of the employer's election to
terminate such plan or agreement or to discontinue making necessary
contributions toward the cost of providing benefits under the plan or
agreement, the employer will continue to provide for the payment of the
disability benefits under the plan or agreement.  Any plan or agreement
referred to in this subparagraph may be extended, with or without modification;
provided the benefits under the plan or agreement, as extended or modified, are
found by the director to be at least as favorable as the disability benefits
required by this chapter; or



(5)  By a new plan or agreement.  On or after
January 1, 1970, a new plan or agreement with an insurer may be accepted
by the director as satisfying the obligation to provide for the payment of
benefits under this chapter if the plan or agreement provides benefits at least
as favorable as the disability benefits required by this chapter and does not
require contributions of any employee or of any class or classes of employees
in excess of the amount authorized in section 392-43, except by agreement and
provided the contribution is reasonably related to the value of the benefits as
determined by the director.  Any such plan or agreement shall continue until
written notice is filed with the director of intention to terminate the plan or
agreement, and any modification of the plan or agreement shall be subject to
the written approval of the director.



(b)  During any period in which any plan or
agreement or extension or modification thereof authorized under subsection (a)(4)
or (5) provides for payments of benefits under this chapter, the responsibility
of the employer and the obligations and benefits of the employees shall be as
provided in the plan or agreement or its extension or modification rather than
as required under this chapter; provided that:



(1)  The employer or insurer has agreed in writing
with the director to pay the assessments imposed by section 392-67; and



(2)  If the benefits provided by the plan or agreement
or extension or modification thereof include benefits falling within the
definition of "sick leave" as defined in section 398-1, any amount in
excess of the minimum statutory equivalent, as determined by the department,
may be used for the purposes of chapter 398.



(c)  If any plan or agreement authorized under
subsection (a)(4) or (5) covers less than all of the employees of a covered
employer, the requirements of this chapter shall apply with respect to the
employer's remaining employees not covered under the plan or agreement.



(d)  As used in subsection (a)(4) or (5),
"benefits at least as favorable as the disability benefits required by
this chapter" means the temporary disability benefits under any plan or
agreement, in whole or in part, whose component parts (waiting period for
illness, waiting period for accident, duration of benefits, and percentage of
wage loss replaced) add in total to cash benefits or wages that are determined
by the director to be at least as favorable as the disability benefits required
by this chapter.  The insurance commissioner shall establish a set of tables
showing the relative value of different types of cash benefits and wages to
assist the director in determining whether the cash benefits and wages under a
plan are at least as favorable as the temporary disability benefits required by
this chapter.



(e)  Any decision of the director rendered
pursuant to this section with respect to the amount of security required,
refusing to permit security to be given or refusing to accept a plan or
agreement as satisfying the obligation to provide for the payment of benefits
under this chapter shall be subject to review on appeal in conformity with the
provisions of this chapter.



(f)  In order to provide the coverage required
by this chapter for employers otherwise unable to obtain or provide such
coverage, the insurance commissioner may, after consultation with the insurers
licensed to transact the business of disability insurance in this State,
approve a reasonable plan or plans for the equitable apportionment among such
insurers of employer applicants for such insurance who are in good faith
entitled to but are unable to procure such insurance through ordinary methods
and, when such a plan has been approved, all such insurers shall subscribe
thereto and participate therein; provided, however, that the commissioner shall
not, for insurance issued or in connection with any such plan or plans, require
or allow the use of premium rates which are either inadequate or excessive in
relation to the benefits to be provided.  Any employer applying for such
insurance or any insured under such plan and any insurer affected may appeal to
the commissioner from any ruling or decision of the manager or committee
designated to operate such plan.  All orders of the commissioner in connection
with any such plan shall be subject to judicial review as provided in chapter
91.



(g)  All insurers shall in form prescribed by
the director notify employer applicants who are unable to procure the required
insurance through ordinary methods, the availability of the plan described in
(f) above. [L 1969, c 148, pt of §1; am L 1971, c 109, §1(d); am L 1978, c 200,
§1; gen ch 1985; am L 2005, c 243, §1]



 



Attorney General Opinions



 



  Where department essentially has two TDI plans (full-time
teachers are covered by a plan approved by DLIR pursuant to subsection (a)(5),
and department's A+ and other employees are paid benefits in accordance with
TDI law found in chapter 392), if an individual is employed by department as
both a full-time teacher and an A+ employee and the individual becomes disabled
for both jobs, the department must pay the individual under both TDI plans. 
Att. Gen. Op. 97-9.