Policy Bulletin No. 1993-04

Section 21.8 Workers' Compensation Leave - June 23, 1993

[For faster downloading, this bulletin is broken down here into three parts.]

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TO: State Departments and Agencies
FROM: Josephine L. Gambino, Commissioner
SUBJECT: Workers' Compensation Medical Evaluation Program - 1991-1995 Negotiated Agreement for the Professional, Scientific and Technical Services Unit

The following material has been prepared to assist you in implementing the new workers' compensation provisions contained in the 1991-1995 agreement between the State and PEF which are effective for accidents on or after July 1, 1993.

If you have any questions concerning the implementation or administration of the PS&T Workers' Compensation Medical Evaluation Program, please contact the Employee Relations Section of this Department at (518) 457-5167.

Attachments [See Part 3]

P-2 TABLE OF CONTENTS (Part 1)

INTRODUCTION
APPLICABILITY
THE BENEFIT

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INTRODUCTION

Effective July 1, 1993, the Workers' Compensation Program for State employees represented by PEF will change. In summary, employees who sustain workers' compensation injuries on or after July 1, 1993, will receive the statutory benefit provided by the Workers' Compensation Law (reimbursement for medical expenses and a wage replacement benefit equal to two-thirds of the employee's average weekly wage, not to exceed $400). In addition, those who elect to participate in a Medical Evaluation Program will be eligible for a supplement to bring them up to 60 per cent of their gross pay and to participate in a Mandatory Alternate Duty Program. Participating employees will earn leave credits, accrue seniority, receive retirement service credit, and be eligible to continue in the health insurance program paying employee share premiums for a period not to exceed nine months. These employees will not be permitted to charge leave credits (except during the first seven calendar days [five work days] of the statutory waiting period and for partial day absences following return to work). Apart from the waiting period, intermittent full-day absences and all periods of continuous absence due to the disability for the first nine continuous months are leave without pay plus supplement and may not be charged to accrued leave credits.

One of the significant changes in the workers' compensation benefits for injuries occurring on or after July 1, 1993, for Professional, Scientific and Technical Services Unit employees, is the ability of an employee to choose Workers' Compensation Law benefits only or the Medical Evaluation Program provided in the contract. If the contractual benefits are chosen, the individual agrees to be part of a medical evaluation process designed to return individuals to work on alternate duty prior to full recovery.

Another significant change is the elimination of the guarantee of salary continuation pending placement on the supplemental payroll. As explained in this memorandum and the payroll bulletin, disabled employees will be allowed to charge credits only for the first five work days of absence and then they will be placed on workers' compensation disability with percentage supplement, which is a leave without pay status. Only after the State Insurance Fund (SIF) has determined the absence to be compensable and issued their first payment, will the Office of the State Comptroller (OSC) begin to make supplemental payments. Under the previous benefit system, the SIF payment and the OSC payment were issued simultaneously. Under this Medical Evaluation Program, SIF will be making wage...

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...replacement payments in accordance with their normal procedures under the Workers' Compensation Law and will then be notifying the employing agency and OSC of payments made and time periods covered. OSC will calculate and issue supplemental payments to qualified employees on the State payroll cycle following receipt of this necessary information from SIF and the agency. Therefore, supplemental payments will be issued several weeks after the employee receives the SIF payment for the same period of disability.

The medical evaluation process set up in connection with this benefit is available to management for PEF-represented employees subject to this benefit to verify ongoing disability and to determine eligibility for mandatory alternate duty. The medical examinations conducted under this evaluation process do not replace current requirements, but are in addition to any medical reports required by agencies in connection with the employer granting benefits or by the SIF in connection with their responsibilities to provide benefits pursuant to the Workers' Compensation Law.

Initially, SIF will function as the third party administrator for the group of physicians that will be conducting the examinations under this medical evaluation process. A request for proposal is being developed and if another vendor is selected in the future, a memorandum will be issued announcing the effective date and any procedural changes that become necessary.

An employee who elects Workers' Compensation Law coverage only, should be placed on leave without pay for all absences related to the workers' compensation accident. This is a regular leave without pay with no additional benefits accruing to the individual. The employee continues to be subject to Section 71 of the Civil Service Law and is entitled to a minimum of one cumulative year of absence and due process proceedings pursuant to Rule 5.9.

An employee who elects to receive benefits under the Workers' Compensation Medical Evaluation Program provided in Article 13 must participate in the medical evaluation and mandatory alternate duty components of the Program to receive these benefits.

The chart entitled "Roles and Responsibilities" (Attachment A) identifies the roles and responsibilities of the parties involved in administration of all the various benefit programs currently available. The chart entitled "Program Provisions" (Attachment B) summarizes the major components of each of the current workers' compensation programs applicable to state employees.

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It is essential that agencies take great care to ensure that necessary agency actions are taken in a timely fashion to avoid delays in the employee's receipt of benefits. It is critical that agencies review communications from the State Insurance Fund since certain actions will be required based on these communications.

APPLICABILITY

Employees in the Professional, Scientific and Technical Services Unit (PS&T) who have Attendance Rules coverage and whose absence is caused by a workers' compensation injury or disease (as defined in the Workers' Compensation Law) from an accident or incident that occurred on or after July 1, 1993 are eligible for coverage under the Medical Evaluation Program. Although not subject to the Attendance Rules of the Civil Service Commission, PS&T Unit employees subject to the following attendance rules are also covered by the Medical Evaluation Program: Attendance Rules for Institution Teachers of the Department of Correctional Services, Attendance Rules for Institution Teachers of the Office of Mental Health, Attendance Rules for Institution Teachers of the Office of Mental Retardation and Developmental Disabilities, Attendance Rules for Institution Teachers of the Division for Youth, civilian personnel subject to the Attendance Rules of the Division of State Police, and employees of Rome School for the Deaf and Batavia School for the Blind subject to the Regulations of the Commissioner of Education.

Employees without Attendance Rules coverage continue to receive the benefits required by the Workers' Compensation Law but are not subject to the provisions of the contract article or the Attendance Rules.

Annual salaried full-time and part-time employees (including those employed on a seasonal basis) who have Attendance Rules coverage are eligible for this benefit. Full-time and part-time employees (including those employed on a seasonal basis) who are paid on an hourly or per diem basis must have gained Attendance Rules coverage, by having completed the required 19 qualifying biweekly pay periods, prior to becoming eligible for this benefit. However, once Rule coverage is attained, these employees' benefits are identical to those available to annual salaried employees.

For the purpose of entitlement to any employer-provided workers' compensation benefits, the State of New York is considered to be one employer. Therefore, if an employee has a work-related injury or disease from employment with agency A, moves to agency B...

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...and is again absent for the same condition, agency B must provide such employee with any benefit not already used at agency A and, therefore, still available for this injury or disease. Likewise, if a person works for two State agencies and incurs as occupational injury at one of them, the employee must be given leave benefits by both employers, to the extent he/she is eligible. The benefits provided by each employer must be added together to determine how much of the total available benefit has been used by the employee.

The eligible employee's entitlement to a particular workers' compensation benefit is determined by both the date of the accident and the bargaining unit to which the employee was assigned on the date of the accident. For example, an eligible employee is injured on October 1, 1988 while in the Security Services Unit. He/She changes jobs on October 15, 1988 and is in a PS&T Unit position. On November 3, 1988, the employee begins losing time from work due to the October 1, 1988 accident. This employee is eligible for the Workers' Compensation Leave Benefit for any disability related to the October 1, 1988 accident because the absence is due to an incident that occurred while subject to the provisions of the Security Services Unit agreement. Any incidents which occurred between April 1, 1986 and June 30, 1993 while he/she is a PS&T Unit employee will be subject to the provisions of the Supplemental Pay Program and those that occur on or after July 1, 1993 (if he/she remains in the PS&T Unit) will be subject to the Medical Evaluation Program.

THE BENEFIT

Waiting Period

No wage replacement benefit is payable if the absence due to a workers' compensation injury or disease does not exceed seven calendar days.
If absence is for at least eight calendar days, but does not exceed 14 calendar days, wage replacement benefits are payable beginning with the eighth calendar day of
disability.
Once absence due to a single injury or disease exceeds 14 calendar days, wage replacement benefits are payable retroactively to the first day of disability.

Employees are allowed to charge available leave credits only during the first seven calendar days (five work days) of the...

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...waiting period. The agency will assume that the employee has elected to be covered by the contractual benefit and that the employee wants to charge leave credits for the first five work days until such time as the employee indicates otherwise in writing. If the agency is notified that the employee did not want to participate or did not want to charge credits, adjustments should be made retroactively. All available leave credits may be charged during the waiting period although sick leave credits should be charged first before other categories of leave in most instances.

Employees may not be advanced leave to cover this period; however, eligible employees who have exhausted their leave accruals must, upon request, be granted sick leave at half-pay during the waiting period. Employees are eligible to be granted sick leave at half-pay under the Attendance Rules if they are permanent non-probationary employees who have completed one cumulative year of state service; contractual waiting periods for mandatory sick leave at half-pay do not apply.

The agency submits a PR-75 placing the employee on workers' compensation disability leave with percentage supplement effective the eighth calendar day of disability. The employee will receive wage replacement benefits from the State Insurance Fund beginning with the eighth day. The employee will also receive a supplemental payment from OSC if eligible.

If the employee requests not to use leave credits or does not request use of sick leave at half-pay, the agency places the employee on workers' compensation disability leave with percentage supplement effective the first day of disability and the employee will receive wage replacement benefits from the SIF beginning with the eighth day of absence for those disabilities that do not exceed 14 calendar days or beginning with the first day of disability once the disability goes beyond 14 calendar days. OSC will pay a supplement to eligible employees for the same period covered by the SIF payment for which the employee was not charging credits.

The employee remains on workers' compensation disability leave with percentage supplement for the duration of disability or nine months, whichever is less. The employee whose absence goes beyond the 14 calendar days will have the credits and/or sick leave at half pay he/she charged during the initial seven calendar days restored (not recredited) on a prorated basis following a Workers' Compensation Board Notice of Decision crediting New York State with the wage replacement. (See Restoring Leave Credits below for further information.)

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The first day of compensable lost time for the purpose of calculating the waiting period and eligibility for benefits is determined by SIF who will inform the agency of this date upon acceptance of the claim. The appointing authority, when reporting an accident or incident to SIF, must include the time and date of the accident/incident.

The Workers' Compensation Law statutory waiting period is applied only once per injury or disease and is met by cumulating the employee's absences in full days.

Benefit Status

A participating disabled employee is placed on workers' compensation disability leave with percentage supplement at the end of the seven calendar day waiting period if the employee elected to charge leave credits or as of the first day of absence if the employee did not elect to charge leave credits. The employee continues on workers' compensation disability leave with percentage supplement for the duration of the absence or nine cumulative months whichever is less and is placed in no pay status for all other full day absences related to the incident which occur after return to work. Refer to the Office of the State Comptroller Payroll Bulletin to be issued in the near future for more detailed information on processing these transactions.

In the circumstance where it was not possible to place an employee on workers' compensation disability leave with percentage supplement on the eighth day of absence, the agency should process the transaction as soon as possible upon receiving notice that the employee is absent due to a workers' compensation disability. Credits the employee may have charged after the eighth day and prior to being placed on workers' compensation disability leave with percentage supplement will be restored prorata following an award by the WCB crediting New York State for wages paid.

While an employee is absent on workers' compensation disability leave with percentage supplement and receiving compensation benefits from the State Insurance Fund, and OSC if eligible, the employee is treated as though in full pay status for the purpose of accruing biweekly leave accruals, continuous service, retirement service credit and health insurance for up to nine cumulative months of absence. (See Earning of Leave Accruals below for further information on leave accruals.) The nine months is defined as 39 weeks of payments from SIF.

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Supplemental Payments

Employees who participate in the Medical Evaluation Program may be eligible to receive a supplemental payment from OSC while absent on workers' compensation disability leave with percentage supplement if their wage replacement from SIF is less than 60% of their pre-disability gross wages. The pre-disability gross wages are defined as the sum of an employee's base annual salary, location pay, geographic differential, shift differential and inconvenience pay. To qualify for a supplement, a participating employee must have a degree of disability of total (100%) or marked (75%) as determined by the State Insurance Fund and must be within the first nine months (39 weeks) of disability. Once an employee is determined to be 50% or less disabled by SIF (moderate or mild disability) or an employee has been absent for more than nine cumulative months (39 weeks), the employee is no longer eligible for supplemental payments except as provided under the Mandatory Alternate Duty policy as explained on page 27. Supplemental payments will be processed by OSC in accordance with their payroll bulletin on this subject. These Payments will be made following a determination by SIF that the absence is compensable and after issuance of the SIF wage replacement. Once OSC receives notice, as described in their procedures, from both SIF and the appointing authority that the employee is eligible for a supplement, it will be calculated and issued as indicated.

Deductions from Supplemental Payments

For employees eligible for a supplement because their SIF wage replacement is less than 60 per cent of their pre-disability gross salary; taxes, Social Security and Medicare and all deductions taken from the regular payroll check will continue to be taken to the extent the supplement is large enough. If the supplement is not sufficient, the employee is responsible for making the required payments as indicated below:

Retirement

The employee will be responsible for payment of the employee contribution (where applicable) to the retirement system and the State will continue its contribution. The employee contributions not taken from the supplemental payments will be taken retroactively via payroll deduction when the employee returns to duty and full pay. Refer to the Employees' Retirement System memorandum for an explanation of this process.

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Health Insurance

The employee will be responsible for the regular biweekly employee share of the health insurance premium. Premiums not taken from the supplemental payments will normally be taken retroactively via payroll deductions when the employee returns to the payroll. For detailed information on health insurance issues refer to the applicable "Memorandum to Agency Health Benefits Administrators."

Other Deductions

Any other deductions not taken because the supplement was not sufficient will not be taken retroactively upon return to the regular payroll. The employee is responsible for making direct payment for these payroll deductions (e.g., life insurance, credit union). Refer to Attendance and Leave Manual General Information Bulletin No. 90-02, issued November 30, 1990, for information on who to contact regarding making direct payments for credit unions, PEF insurances, deferred compensation, individual retirement accounts and any other authorized payroll deductions.

Earning of Leave Accruals

Employees who are on workers compensation disability leave with percentage supplement earn biweekly sick leave and vacation credits for up to nine cumulative months of absence. For purposes of determining eligibility to earn biweekly leave accruals, a day of workers' compensation disability leave is treated as though it were a day in full pay status. This is true whether the day falls during a period of continuous or intermittent absence. Under the Attendance Rules, employees whose normal work schedule is 10 days in a payroll period must complete a minimum of seven full days out of 10 in full pay status in order to be eligible to earn leave accruals for that payroll period. A day of workers' compensation disability leave counts as a day toward meeting that seven-day eligibility threshold just as do days worked or charged to leave accruals.

For example, a full-time employee absent for four intermittent days of workers compensation disability leave who works the remaining six days in that payroll period earns his/her normal biweekly accruals as a full-time employee for that payroll period as does the full-time employee who is absent for 10 days on workers' compensation disability leave with percentage supplement. Similarly, a 60 percent part-time employee with a normal schedule of six days per biweekly pay period who is absent for three...

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...intermittent days of workers' compensation disability leave and works the remaining three days in that payroll period earns his/her normal biweekly accruals (i.e., 60 percent of the full-time accruals) for that payroll period as does the 60 percent employee who is absent for six days on workers' compensation disability leave.

Personal Leave

Employees who are on workers' compensation disability leave with percentage supplement on their personal leave anniversary date are credited with their personal leave days on that date.

Vacation Bonus Days

Employees who are on workers' compensation disability leave with percentage supplement on their vacation anniversary date are credited with any vacation bonus days or additional vacation days for which they are otherwise eligible on that date.

Holidays

Employees on workers' compensation disability leave with percentage supplement are not eligible to observe holidays except those that fall during the initial 7 calendar day waiting period and only if they elect to charge leave credits. If a holiday falls during the seven calendar day waiting period, an employee charging leave credits charges one day less if the holiday coincides with a workday or is credited with holiday leave for a holiday which coincides with the employee's pass day (regular day off). The waiting period is not lengthened because of the holiday.

Employees on workers' compensation disability leave with percentage supplement are eligible to be credited with floating holidays which fall any time during that leave. If the floating holiday falls during the waiting period, the employee who is charging credits charges the day to other accrued leave and accrues the floating holiday (or, with agency permission, may charge the floating holiday on the day it is earned).

Accrual Maximums

Employees continue to be subject to provisions on maximums for accrual of vacation and sick leave credits and expiration dates for personal leave and floating holidays. Refer to the appropriate sections of the Attendance and Leave Manual for clarification as to...

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...what these limits are. While an employee is on workers' compensation disability leave with percentage supplement, leave credits cannot be accrued above established maximums nor can they be carried beyond the date on which they would otherwise lapse. (See Restoring Leave Accruals for a discussion of the impact of restoration on accrual maximums and expiration dates.)

Charging Leave Accruals

Employees absent from work due to a workers' compensation disability may charge any available leave accruals during the initial seven calendar day (five work day) waiting period. All the employee's credits are available during this period although sick leave credits should be charged before other categories of leave accruals in most cases. If sufficient leave credits are not available, the eligible employee must, upon request, be granted sick leave at half-pay. (See page 13 for eligibility criteria.) However, there are no provisions for advancing of leave accruals under this Program. Leave credits used or sick leave at half-pay granted during this initial waiting period are not recredited to the employee. There are no provisions for recrediting of leave accruals used at any time under this Program. (Refer to Restoring Leave Accruals for further information.)

Once the seven calendar day period has passed, the employee is placed on workers' compensation disability leave with percentage supplement and cannot charge leave accruals or be granted sick leave at half-pay for any full day absences in connection with this disability.

Employees may charge leave credits for partial day absences following return to work. However, employees are not permitted to charge leave accruals for full days of intermittent absence following return to work.

When a case is controverted because SIF does not find the disability to be job-related but agrees that the employee is disabled, the employee is permitted to charge the absence to leave credits. Any requests to charge accrued leave credits under these circumstances should be made in accordance with normal agency procedures for use of leave credits. However, when a case is contested because the employee is found to be not disabled, the employee is placed on leave without pay for the period of absence under dispute pending resolution of the claim and is not permitted to charge leave credits.

[Continue to Part 2]

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