Section 21.8 - Workers' Compensation Leave
The purpose of Workers' Compensation Leave is to protect employees against loss of income or loss of employment when they are necessarily absent from work because of an on-the-job injury or disease.
NOTE: The workers' compensation benefit available to eligible employees has been significantly changed by negotiated agreement from that provided by these Rules. Manual users should be careful to read and to apply the references to the negotiated provisions in the Related Contract Provisions column. [If there is a contract item which changes a specific benefit provided in the rules, there will be a hyperlink at the end of the paragraph connecting to the contract page that is relevant.]
All employees subject to the Attendance Rules are eligible for leave under this Section provided the absence is caused by an occupational injury or disease as defined in the Workers' Compensation Law; the appointing authority is notified that the absence is caused by an occupational injury or disease and that the employee wishes to claim benefits under the Workers' Compensation Law; the claim for benefits is not controverted by the State Insurance Fund (see "Controverted Cases" below); and the employee incurred the injury or disease while he/she was a State employee.
The appointing authority may withhold or terminate leave under this Section if it is determined that the employee has been permanently incapacitated from the performance of his/her duties. The notification of termination of leave under this Section must occur no less than 30 days nor more than 60 days prior to the effective date of termination in the manner prescribed by Section 5.9 of the Rules for the Classified Service.
Procedures for Granting Workers' Compensation Leave
Agencies must establish uniform criteria and procedures for the granting of leave under this Section. The procedures must incorporate notification as specified in Section 5.9 of the Rules for the Classified Service which includes the effective date of leave, the amount of paid leave to be granted and the employee's rights pursuant to Section 71 of the Civil Service Law.
The State Insurance Fund, at the request of the appointing authority or on its own initiative, may controvert an employee's claim for benefits under the Workers' Compensation Law.
An employee whose case is controverted may not be granted leave under this Section. However, controversion does not affect eligibility for leave under other provisions of the Attendance Rules.
If the final determination in a controverted case is in favor of the employee, he/she is entitled to leave under this Section for all absences covered by this determination and all future compensable absences attributable to this work related injury, provided the eligibility requirements are met, and in accordance with "Amount of Leave to be Granted" below.
Amount of Leave to be Granted
An eligible employee must be granted a leave of absence under this Section for the period necessitated by the injury or disease up to a cumulative maximum of one year (365 calendar days).
The appointing authority may grant an extension of this one year maximum in accordance with Section 22.1 of the Attendance Rules.
At the discretion of the appointing authority, a cumulative maximum of six months (182.5 calendar days) of this leave may be granted at full pay without charge to leave credits. (See Appendix F for additional information on the leave entitlement for managerial/confidential employees).
Sick leave, vacation, holiday, and overtime credits may be used during such leave. Following this, and at the discretion of the appointing authority, an employee may use personal leave and be granted extended sick leave and sick leave at half-pay in accordance with the Attendance Rules.
An employee who is eligible for leave under this Section may be granted compensation leave with pay without charge to leave credits to attend hearings or medical examinations ordered by the Workers' Compensation Board. Such compensation leave with pay must be counted when computing the cumulative maximum of six months of leave with pay without charge to credits allowed under this Section.
Leave under this Section need not be granted beyond the date when the employee's job would normally terminate by operation of law or rule.
Calculation of Amount of Leave
Calculation of the "cumulative year" is based on calendar days (365 calendar days). Extended periods of absence are simply counted on a day-for-day basis. Intermittent short-term absences are counted on a day-for-day basis including all non-workdays that fall between two workday absences. For example, an employee with regular days off on Saturday and Sunday who is absent on workers' compensation leave on Friday and the following Monday has used up four days of his/her 365 calendar day entitlement. Such absences are counted toward the year regardless of the employee's pay status (i.e., on full pay with no charge to credits, on full pay with charge to credits, on half-pay or on leave without pay.)
Calculation of the six months of workers' compensation leave at full pay without charge to credits is also based on calendar days (182.5 calendar days). Extended periods of absence are counted on a day-for-day basis including all non-workdays that fall between two workday absences. (See Appendix F for additional information on managerial/confidential employees).
In calculating the six months of leave with pay and in calculating the cumulative year, less than full day absences are counted as fractions of a day. The partial day absence is calculated based on the number of hours of absence and the number of scheduled hours in the workday on which the absence took place. For example, an employee with a regular workday of ten hours who is absent for five hours has used 1/2 day of entitlement; an employee who has a regular workday of 7 1/2 hours who is absent 5 1/2 hours has used 3/4 day of entitlement.
An employee who is on leave with full-pay as provided by this Section shall earn vacation and sick leave credits in accordance with the Attendance Rules.
An employee who is on leave with full-pay or half-pay as provided in this Section shall be credited with personal leave and receive vacation bonus days on his/her anniversary date in accordance with the Attendance Rules.
An employee on leave with full-pay without charge to credits as provided by this Section on days observed as holidays by the State as an employer shall not be entitled to holiday compensation pay for these days nor to compensatory time off in lieu thereof.
See related contract provision C-28
Award Credited to State
An award by the Workers' Compensation Board of compensation for any period for which the employee receives or has received salary from the State is credited to the employee's agency as reimbursement for wages paid.
See related contract provision C-20
However, workers' compensation leave with pay cannot be rescinded nor can the employee be required to make reimbursement for the leave if no wage award is made for the period for which the leave was originally granted.
Restoral of Leave Credits
Leave credits, including sick leave at half-pay eligibility, are restored to an employee when an award of compensation has been made and credited to the State for a period(s) of absence(s) during which credits were used in connection with the grant of workers' compensation leave made under this Section. These credits are restored whether or not the employee ever returns to service. (Personal leave is not restored if the employee used this leave prior to the last anniversary date on which he/she was granted it.)
An employee who has returned to service after a leave of absence granted under this Section has one year in which to reduce his/her accrued credits to the maximum allowed beginning on the date of his/her return to service or the date on which his/her credits are restored, whichever is later. The employee continues to earn accruals during this period.
See related contract provisions 21.2, C-6
Leave credits restored under the provisions of this Section may not be used again as part of leave granted under this Section for the same compensable injury or disease.
Cash payment for restored credits is made in accordance with the provisions of Part 23, "Drawing of Earned Credits Upon Separation or Entry Into Armed Forces," of the Attendance Rules.
An employee may be required to undergo a medical examination by a physician designated by the appointing authority in order to provide a basis for controversion of the claim, withholding or terminating leave under this Section because the employee is permanently incapacitated or determining the fitness of an employee prior to his/her return to work. The employee and designated physician will be provided a statement of the duties of the position in accordance with Section 5.9 of the Rules for the Classified Service.
See related contract provision C-30
On the basis of this examination the appointing authority may approve or deny the employee's return to work. If return is denied, the employee must be notified in accordance with the provisions of Section 5.9 of the Rules for the Classified Service of the right to contest this determination.
Procedures Upon Denial of Benefits
An employee may request the Civil Service Commission to review the appointing authority's determination in the event he/she is denied pay (full or half), as provided by the Attendance Rules, while on Workers' Compensation Leave. For further information see Section 26.3.
When the appointing authority has withheld or terminated a leave of absence under this Section on the grounds that the occupational injury or disease has permanently incapacitated the employee for performance of the duties of the position, the employee may appeal this determination in accordance with Rule 5.9 of the Rules for the Classified Service. State Personnel Management Policy Bulletin #90-02 dated July 5, 1990 [Since replaced by Policy Bulletin #93-02 in 2200 Separations and Leaves] details procedural guidelines for the notification and appeal process required pursuant to Rule 5.9.
See related contract provision C-24