§ 72 — Leave for ordinary disability

New York § 72

• Jurisdiction: New York
• Law CVS: Civil Service
• Title A: Transfers: Reinstatements
• Art. 5: Personnel Changes

Text

§ 72. Leave for ordinary disability. 1. When in the judgment of an\nappointing authority an employee is unable to perform the duties of such\nemployee's position by reason of a disability, other than a disability\nresulting from occupational injury or disease as defined in the workers'\ncompensation law, the appointing authority may require such employee to\nundergo a medical examination to be conducted by a medical officer\nselected by the civil service department or municipal commission having\njurisdiction. Written notice of the facts providing the basis for the\njudgment of the appointing authority that the employee is not fit to\nperform the duties of such employee's position, and copies of any\nwritten, electronic or other communication by the appointing authority\nto a medical officer or any other entity regarding the claim that such\nemployee is unable to perform their duties pursuant to this section,\nshall be provided to the employee, the authorized representative of such\nemployee and the civil service department or commission having\njurisdiction prior to the conduct of the medical examination. If, upon\nsuch medical examination, such medical officer shall certify that such\nemployee is not physically or mentally fit to perform the duties of such\nemployee's position, the appointing authority shall notify such employee\nthat they may be placed on leave of absence. An employee placed on leave\nof absence pursuant to this section shall be given a written statement\nof the reasons therefor and complete copies of all of the documentation,\nreports and records relied upon by the medical officer during their\nexamination, including any documents, reports and correspondence sent to\nthe appointing authority at the conclusion of the examination. Such\nnotice shall contain the reason for the proposed leave and the proposed\ndate on which such leave is to commence, shall be made in writing and\nserved in person or by first class, registered or certified mail, return\nreceipt requested, upon the employee. Such notice shall also inform the\nemployee of their rights under this procedure. An employee shall be\nallowed ten working days from service of the notice to object to the\nimposition of the proposed leave of absence and to request a hearing.\nThe request for such hearing shall be filed by the employee personally\nor by first class, certified or registered mail, return receipt\nrequested. Upon receipt of such request, the appointing authority shall\nsupply to the employee, such employee's personal physician or authorized\nrepresentative, copies of all diagnoses, test results, observations and\nother data supporting the certification, and imposition of the proposed\nleave of absence shall be held in abeyance until a final determination\nis made by the appointing authority as provided in this section. The\nappointing authority will afford the employee a hearing within thirty\ndays of the date of a request by the employee to be held by an\nindependent hearing officer agreed to by the appointing authority and\nthe employee except that where the employer is a city of over one\nmillion in population such hearing may be held by a hearing officer\nemployed by the office of administrative trials and hearings. If the\nparties are unable to agree upon a hearing officer, such hearing officer\nshall be selected by lot from a list of persons maintained by the state\ndepartment of civil service. The hearing officer shall not be an\nemployee of the same appointing authority as the employee alleged to be\ndisabled. The hearing officer shall be vested with all of the powers of\nthe appointing authority, and shall make a record of the hearing which\nshall, with such hearing officer's recommendation, be referred to the\nappointing authority for review and decision and which shall be provided\nto the affected employee free of charge. A copy of the transcript of the\nhearing shall, upon request of the employee affected, be transmitted to\nsuch employee without charge. The employee may be represented at any\nhearing by counsel or a representative of a certified or recognized\nemployee organization and may present medical experts and other\nwitnesses or evidence. The employee shall be entitled to a reasonable\nperiod of time to obtain such representation. The burden of proving\nmental or physical unfitness shall be upon the person alleging it.\nCompliance with technical rules of evidence shall not be required. The\nappointing authority will render a final determination within ten\nworking days of the date of receipt of the hearing officer's report and\nrecommendation. The appointing authority may either uphold the original\nproposed notice of leave of absence, withdraw such notice or modify the\nnotice as appropriate. In any event, a final determination of an\nemployee's contest of a notice of leave shall be rendered within\nseventy-five days of the receipt of the request for review. An employee\non such leave of absence shall be entitled to draw all accumulated,\nunused sick leave, vacation, overtime and other time allowances standing\nto such employee's credit. The appointing authority in the final\ndetermination shall notify the employee of such employee's right to\nappeal from such determination to the civil service commission having\njurisdiction in accordance with subdivision three of this section.\n 2. An employee placed on leave pursuant to subdivision one of this\nsection may, within one year after the date of commencement of such\nleave of absence, or thereafter at any time until his or her employment\nstatus is terminated, make application to the civil service department\nor municipal commission having jurisdiction over the position from which\nsuch employee is on leave, for a medical examination by a medical\nofficer selected for that purpose by such department or commission. If,\nupon such medical examination, such medical officer shall certify that\nsuch employee is physically and mentally fit to perform the duties of\nhis or her position, he or she shall be reinstated to his or her\nposition.\n 3. An employee who is certified as not physically or mentally fit to\nperform the duties of his or her position and who is placed on leave of\nabsence pursuant to subdivision one of this section, or who is denied\nreinstatement after examination pursuant to subdivision two of this\nsection, may appeal from such determination to the state or municipal\ncivil service commission having jurisdiction over his or her position.\nSuch employee and appointing officer or their representatives shall be\nafforded an opportunity to present facts and arguments in support of\ntheir positions including medical evidence at a time and place and in\nsuch manner as may be prescribed by the commission. Provided however,\nthat in considering appeals pursuant to subdivision two of this section\nwhere a hearing has not been held within nine months from the date of\nnotification pursuant to subdivision one of this section, the commission\nshall designate an independent hearing officer who shall hold a hearing\nand report thereon. The commission shall make its determination on the\nbasis of the medical records and such facts and arguments as are\npresented to it. The final determination of the commission shall be\nbinding on both the employee and the appointing authority; provided,\nhowever, that an employee or appointing authority may seek review of a\nfinal determination of a commission in accordance with the provisions of\narticle seventy-eight of the civil practice law and rules.\n 4. If an employee placed on leave pursuant to this section is not\nreinstated within one year after the date of commencement of such leave,\nhis or her employment status may be terminated in accordance with the\nprovisions of section seventy-three of this article.\n 5. Notwithstanding any other provisions of this section, if the\nappointing authority determines that there is probable cause to believe\nthat the continued presence of the employee on the job represents a\npotential danger to persons or property or would severely interfere with\noperations, it may place such employee on involuntary leave of absence\nimmediately; provided, however, that the employee shall be entitled to\ndraw all accumulated unused sick leave, vacation, overtime and other\ntime allowances standing to his or her credit. If such an employee is\nfinally determined not to be physically or mentally unfit to perform the\nduties of his or her position, he or she shall be restored to his or her\nposition and shall have any leave credits or salary that he or she may\nhave lost because of such involuntary leave of absence restored to him\nor her less any compensation he or she may have earned in other\nemployment or occupation and any unemployment benefits he or she may\nhave received during such period.\n