Section 21.8 Workers' Compensation Leave - February 1, 1991
TO: State Departments and Agencies
A number of recent inquiries have concerned the proper use of sick leave and sick leave at half-pay in connection with an employee's claim of disability due to an occupational injury. This memorandum discusses those uses in some detail.
Eligible employees1 who are necessarily absent due to work-related disabilities are entitled to 39 weeks of net pay without charge to leave accruals under the Supplemental Pay Program, followed by use of all available leave credits and sick leave at half-pay, if any. Such entitlement is determined initially by the State Insurance Fund and ultimately by the Workers' Compensation Board. Only those absences for which the employee is found to be disabled by either the State Insurance Fund or the Workers' Compensation Board should be considered under the workers' compensation supplemental pay benefit.
During the first 39 weeks of disability, while waiting to be placed on the supplemental pay system, an employee is eligible to charge all leave credits, including sick leave, as long as the appointing authority is satisfied that the individual continues to be disabled. (The credits are recredited upon placement on the supplemental payroll system, return to work or separation, whichever occurs first.) Verification of ongoing disability is usually obtained from the State Insurance Fund and confirmed by medical documentation from the employee's physician.
Once an absence extends beyond 39 weeks the employee must be allowed use of all leave credits and any sick leave at half-pay entitlement as long as the disability continues. (These credits and half-pay eligibility are restored following a Workers' Compensation Board award.) Before approving the use of sick leave credits or other available credits and sick leave at half-pay, the appointing authority should confirm ongoing disability with the State Insurance Fund. The appointing authority also should require the employee to follow normal agency...
1 Those whose workers' compensation incident occurred on or after April 1, 1986 in Administrative, Institutional, Operational, Professional, Scientific and Technical and Rent Regulation Services Units and on or after September 1, 1986, who are designated Managerial/ Confidential.
...procedures for requesting sick leave at half-pay and to supply periodic medical documentation supporting the ongoing disability. The agency is not required to continue to employ an individual beyond the one year minimum leave mandated under Section 71 of Civil Service Law solely for the purpose of using available leave credits or sick leave at half-pay. However, the employee is entitled to use all available paid leave benefits until actually separated in accordance with Section 71 and Section 5.9 of the Rules of the Classified Service.
There is one additional situation where the use of sick leave and sick leave at half-pay is appropriate: when the State Insurance Fund or Workers' Compensation Board controverts a claim based on a determination that the disability is not job related. In other words, the appointing authority and other review agencies agree the employee is disabled but have taken the position that the disability did not arise out of the course of employment. Under this circumstance, the employer should treat the absence as an ordinary disability until or unless the controversion is overturned.
Whenever an employee is found not to be disabled, by either the State Insurance Fund or the Workers' Compensation Board, the use of sick leave or sick leave at half-pay is inappropriate for continued absence. Use of sick leave or sick leave at half-pay should be denied even if an employee provides conflicting medical evidence from his or her personal physician that indicates the employee is still disabled. Similarly, when a claim for workers' compensation benefits is controverted by the State Insurance Fund on the basis of a finding of no disability, sick leave and sick leave at half-pay should not be used.
In the situation of an employee being absent but not being considered disabled by the State Insurance Fund or the Workers' Compensation Board, the agency may either allow the employee to charge leave accruals, other than sick leave or sick leave at half-pay, or place the employee on leave without pay until such time as the situation is resolved.
Staff from the Employee Relations Section are available to answer questions and provide information to agency staff on specific matters including: attendance and leave administration issues such as the use of sick leave, agency/facility specific accident experience data and other workers' compensation issues. For assistance or further information, please call the Employee Relations Section at (518) 457-5167.