Section 21.8 Workers' Compensation Leave - April 1, 1993
TO: State Departments and Agencies
As provided in the 1991-95 negotiated agreements between the State and CSEA and the State and DC-37, a Mandatory Alternate Duty Policy has been negotiated by the parties and was disseminated with GOER Memorandum Number 92-03, dated August 12, 1992. The purpose of this memorandum is to set forth guidelines for administration of the Mandatory Alternate Duty Policy. Questions concerning the information in this bulletin should be directed to the Employee Relations Section of this Department at (518) 457-5167.
In the interest of returning employees who have sustained workers' compensation disabilities to duty as soon as possible and in recognition of the fact that the statutory wage replacement benefit may be reduced in proportion to the employee's reduced percentage of disability, the State and CSEA and the State and DC-37 have negotiated a Mandatory Alternate Duty Policy in connection with the workers' compensation benefits provided in the 1991-95 agreements between the State and CSEA and the State and DC-37. The Mandatory Alternate Duty Policy became effective on July 1, 1992, the effective date of the Statutory Workers' Compensation Program.
The Mandatory Alternate Duty Policy is designed to assist employees in returning to work prior to resumption of full job duties and to enable agency management to utilize the capabilities of these employees who would otherwise be unable to return to duty until some future time. In connection with this policy, the term "mandatory" means that (a) an employee who meets the eligibility criteria and requests a mandatory alternate duty assignment must be offered a mandatory alternate duty assignment or the employee must be compensated as provided below, and, (b) that an employee who meets the eligibility criteria can be ordered by management to return to work a mandatory alternate duty assignment.
The Mandatory Alternate Duty Policy applies to every employee who is eligible for benefits under the workers' compensation article of the negotiated agreements. See Policy Bulletin 92-01, dated July 1, 1992 for an explanation of those eligibility criteria. In addition, to qualify for participation in the Mandatory Alternate Duty Program, an employee must meet the following criteria:
These medical findings may occur in the course of an examination by an SIF consulting physician, or by the employee's attending physician, or in connection with a management-ordered medical evaluation. (Refer to "Medical Documentation" below for a more detailed discussion.)
There are no limitations on the number of times an employee can be given a mandatory alternate duty assignment either at employee request or management direction. However, each 45 calendar day period must be discrete; that is, the employee must be absent and must meet the eligibility criteria at the time each request is made. For example, an employee may have had an accident and requested and received a mandatory alternate duty assignment at the time he/she initially returned to work. Now, several months later, the employee is again absent due to surgery to correct a problem caused by the accident and is requesting mandatory alternate duty prior to return to full duties. As long as the employee meets the eligibility criteria, as evidenced by medical documentation satisfactory to management, he/she is again eligible for a mandatory alternate duty assignment.
Employee Requests for Mandatory Alternate Duty
An employee meeting these eligibility criteria may request his/her agency to develop an alternate duty assignment. Such request can be submitted at any time between the date of full recovery specified in the medical documentation and 65 calendar days prior to that date. However, in no instance may the mandatory alternate duty assignment begin earlier than 45 calendar days prior to the date of full recovery provided by the examining physician. For any such employee who meets the eligibility criteria set forth above, as determined on the basis of medical documentation satisfactory to management, the appointing authority is required to take one of the following actions:
Management-Directed Mandatory Alternate Duty Assignments
If an employee who meets the eligibility criteria does not request an alternate duty assignment, agency management may direct the employee to return to work on an alternate duty basis. Such mandatory alternate duty assignment shall be for up to 45 calendar days and shall take into account the employee's physical limitations.
Assignment to Mandatory Alternate Duty
The employee who accepts a mandatory alternate duty assignment is returned to the payroll and is entitled to receive his/her regular salary for the period of the mandatory alternate duty assignment. Eligibility for added salary factors is the same as for an employee performing full duties. In addition, time spent in a mandatory alternate duty assignment counts as time served for the purpose of completing an employee's probationary period. Employees working a mandatory alternate duty assignment are in full pay status and are eligible to earn bi-weekly leave accruals, observe holidays, earn holiday pay or holiday leave for work on a holiday, earn floating holidays, and otherwise be treated for attendance and leave purposes as any other employee at work performing his/her regular duties.
Where an employee declines a mandatory alternate duty assignment, the employee will be continued on workers' compensation disability leave without pay and will be referred to the SIF for an appropriate benefit determination.
Employees who neither request nor are ordered to return to work continue
on workers' compensation disability leave without pay receiving wage
replacement benefits from the SIF in accordance with the Workers'
Medical documentation submitted to support an employee's participation in the Mandatory Alternate Duty program must be satisfactory to management. This documentation should contain the following information: a statement that the employee is 50% or less disabled, an estimated date of full recovery that is within 65 calendar days of the date of the medical examination, and a statement of the physical limitations which need to be taken into consideration in developing the employee's mandatory alternate duty assignment. This documentation may be provided by an SIF or other State-selected physician or by the employee's attending physician or by a combination of information from these sources.
All medical documentation should be treated confidentially and great care should be exercised to protect employees against the indiscriminate dissemination or use of the medical information it contains. However, appropriate agency staff are entitled to have access to the medical information related to an employee's physical limitations to the extent it is necessary (1) to evaluate the employee's ability to participate in the Mandatory Alternate Duty Program and (2) to develop an appropriate assignment.
The first eligibility criterion for a mandatory alternate duty assignment is having a disability rating of 50 percent or less. The SIF consulting physicians will generally indicate that an employee is totally, marked, moderately or mildly disabled. The moderate and mild disability categories meet the criterion of being 50 percent or less disabled. If the agency has any questions about the disability rating, the SIF should be contacted immediately. In the case of an attending physician's report or a management-ordered medical evaluation report other than an SIF report, if the physician's report indicates a partial disability, the SIF should be contacted immediately for their interpretation of the disability rating. If they advise that the medical report is to be interpreted as rating the employee as mildly or moderately disabled, the employee will meet the eligibility criterion of being 50% or less disabled for the Mandatory Alternate Duty Program.
If the employee disputes the disability rating, the case will be referred to the Workers' Compensation Board for a final determination and the employee will remain absent receiving benefits from the SIF as determined appropriate.
The second eligibility criterion is having a prognosis of full recovery within 45 calendar days of the first day a mandatory alternate duty assignment will begin. Generally, medical documentation that indicates a recovery date within 65 calendar days of the date of the medical examination would be considered acceptable although in no case is the employee eligible to be returned to duty on a mandatory basis sooner than 45 calendar days from the indicated full recovery date.
Once management has acceptable medical documentation indicating the employee's eligibility for mandatory alternate duty, it is necessary to obtain medical information concerning the employee's limitations so that an appropriate assignment can be designed. SIF physicians are being requested to provide this information at the time of their evaluation so their initial reports should meet management's needs in most cases. If agency management directs an employee to have a physical examination, the request to the physician to schedule the examination should include a request for a statement of limitations/capabilities in order for the information to be available in a timely manner. If an employee presents documentation from his/her personal physician that does not contain sufficient information, management should contact that physician to obtain additional information since that would generally be the most expedient route to obtain the needed information. The attached Physical Capabilities Form can be used, as can any existing agency form, to make such a request of an attending physician or a physician selected by management to perform an evaluation.
As indicated above, there are occasions when agency management will need additional medical information beyond the original documentation regarding an employee's participation in the Mandatory Alternate Duty Program. While this need usually can be met by requesting more detailed information from the examining physician, occasionally, agencies may need to have the employee...
...examined by a physician selected by management. In those cases where agency management feels the need to have the employee examined by a physician selected by management, the agency shall make a reasonable effort to complete a medical examination within 20 calendar days from receipt of the employee's request for a mandatory alternate duty assignment.
When agency management fails to complete the medical examination and reach a decision regarding the employee's eligibility for a mandatory alternate duty assignment within the 20 calendar day period, the employee shall receive a supplement that will net the employee the difference between the employee's full 100% disability statutory benefit rate and the partial statutory benefit rate being paid to the employee by the State Insurance Fund until the examination is completed and a decision made. This provision shall not apply where the failure of the agency-selected physician to complete the medical examination is attributable to the employee's failure to appear for the examination, the employee's refusal to allow it to be held, or the employee's refusal to cooperate or provide the necessary documentation.
This is the same supplement due an employee when management fails to provide a mandatory alternate duty assignment to a qualified employee who requests one. Please contact your GOER representative if you anticipate the need to pay a supplement under the conditions outlined above.
If, following this examination, the agency-selected physician does not find the employee eligible to participate in the Mandatory Alternate Duty Program, the employee will be referred to the SIF for an appropriate benefit determination.
The issue of medical documentation is not reviewable under Article 34 of the Agreement. Employees have the right, however, pursuant to the Workers' Compensation Law, to challenge the determination of level of disability as it impacts on the statutory wage replacement benefits they receive. Decisions of the Workers' Compensation Board are binding on the parties.
Development of Mandatory Alternate Duty Assignments
A mandatory alternate duty assignment, to constitute a valid offer, must be reflective of the employee's physical limitations and may involve performance of some duties of the employee's...
...regular position, or some duties of another existing position or a composite of tasks from several positions. Through a review of past workers' compensation experience, agencies may be able to develop an inventory of potential alternate duty assignments or tasks. However, agencies are expected to make every effort to tailor any mandatory alternate duty assignment to the individual employee's specific limitations as well as his/her capabilities.
An offer of a mandatory alternate duty assignment to an employee should include the following:
The specifications in the offer will be based on the medical documentation accepted by management. Since an assignment may be for as long as 45 calendar days, management may design an assignment that changes over time. For example, an assignment may begin with training for a week or two and then progress to an assignment that is less sedentary for a second period of time, and finally to more physical tasks at the end of the period immediately prior to return to full duties. Assignments such as this should be explained to the employee when initially offered. In addition, management may find it necessary, occasionally, to offer an employee an assignment defined only for the beginning of the mandatory alternate duty period in order to return him/her to work as quickly as possible. For example, if an employee was eligible for a mandatory alternate duty assignment for four weeks, management could offer the employee an assignment that was defined for two weeks with the understanding that the next two weeks of the assignment would be developed and discussed with the employee prior to expiration of the first two week period.
If an eligible employee believes that some element of the proposed mandatory alternate duty assignment constitutes a personal hardship, he/she may express the claim of hardship to the appropriate agency official who has been designated to fill this role. Such claim of hardship will be considered by the agency official and responded to in writing with a copy to CSEA prior to...
...the proposed beginning date of the mandatory alternate duty assignment or as soon thereto as possible. This response shall be considered dispositive of the matter.
As stipulated in the Agreements, management has the authority to make mandatory alternate duty assignments to tasks that can be performed by the employee which may not necessarily fall within the employee's regular salary grade, title series or job duties and such assignments are not considered violations of either Article 24 of the Agreements or Section 61.2 of the Civil Service Law. Also, such assignments are not considered violations of Articles 44 or 45 of the Agreements since mandatory alternate duty assignments exist outside the posting and bidding process. Additionally, when developing an assignment, management is not restricted to the employee's former work location, work schedule, or workweek and such conditions of the assignment are not considered violations of Article 32. However, once a mandatory alternate duty assignment is specified for the entire period required and has begun, the provisions of Article 32 cover the employee while he/she is working in the assignment.
Notwithstanding this broad latitude to develop assignments, agencies may find that identifying alternate duties as close to the employee's regular duties as possible, given the person's physical limitations, are the most successful assignments and are most helpful in preparing the employee to return to his/her regular duties at the end of the assignment. Agencies may also find that identifying assignments that are similar to the employee's regular job in terms of location, shift and pass days also provide a level of normalcy that improves the employee's prognosis for successful completion of the assignment and return to regular duty at the end of the assignment.
Management is expected to accommodate the employee as much as possible and exercise sound judgment and consistency in the development of mandatory alternate duty assignments. Once management has received satisfactory medical documentation establishing an employee's eligibility and physical limitations, it is incumbent upon them to establish and offer the mandatory alternate duty assignment as soon as practicable and consistent with the employee's first date of eligibility for the assignment. Agency management will discuss, clarify and review the proposed mandatory alternate duty assignment with the employee and will discuss any changes in that assignment that become necessary during...
...the course of the assignment prior to the change taking place. It is not the intent of this policy, however, to in any way entitle an affected employee to negotiate his/her mandatory alternate duty assignment with agency management.
The provisions of this Program including, for example, the nature of alternate duty assignments and the review of personal hardship situations, are appropriate subjects for labor/management discussions.
Expiration of Mandatory Alternate Duty Assignments
When an employee's mandatory alternate duty assignment expires, the employee will be found able to perform the full duties of his/her regular position in most cases and will return to full duty. If not sufficiently recovered, however, the employee either is placed on workers' compensation disability leave without pay and is covered by the workers' compensation statute (receiving a wage replacement benefit reflective of the employee's level of disability), or, may request a discretionary extension of the mandatory alternate duty assignment. (Refer to "Extension of Mandatory Alternate Duty Assignments" below.)
Management has the right, whenever necessary, to request an employee to submit additional medical documentation during the course of a mandatory alternate duty assignment to verify on-going eligibility for the Program. An employee determined to be recovered, based on this medical evidence, before the anticipated recovery date should be directed to return to full duty and an employee whose condition worsens may be returned to leave status (See "Termination of Mandatory Alternate Duty Assignments" below.) The most common situation will be a change in the date of return to full duties. Generally a prognosis of return to regular duties that is originally given two to three months in advance could change by a few days or even a week or so. In this case, management should consider extension of the mandatory alternate duty assignment as described below.
Nothing in this policy diminishes management's right to have the employee examined by a physician selected by management as a condition of allowing the employee to return to full duties. In other words, the fact that there was an initial prognosis accepted by management of ability to perform the full duties of the employee's regular job on a specific date does not make return to...
...full duty at the end of the mandatory alternate duty assignment on that date automatic.
Extension of Mandatory Alternate Duty Assignments
There will be cases where employees who qualified for and participated in the Mandatory Alternate Duty Program and whose mandatory alternate duty assignment has expired do not fully recover within the specified period. Since their alternate duty assignments automatically expire, these employees may request and management may elect to continue the assignments on a discretionary basis beyond the established ending date.
One common occurrence will be a change in the date of return to full duties by a few days or a week or so based on more current medical information. Agencies are encouraged to continue employees on alternate duty whose date of return to full duties changes in this manner rather than returning an employee to leave status only to reinstate him/her from leave within a very short period of time.
Any extensions are subject to the terms and conditions of this program, are solely at management discretion and must be supported by the submission of additional medical documentation satisfactory to management. Extensions will be granted only for very limited time periods, for example in single payroll period blocks, and only when supported by satisfactory medical documentation.
Termination of Mandatory Alternate Duty Assignments
A mandatory alternate duty assignment may be terminated prior to its expiration if it is determined, based on medical documentation satisfactory to management, that the employee is able to return to full duties earlier than the original prognosis had indicated. When the agency has medical documentation indicating full recovery, the employee should be ordered to return to full duties immediately. If the employee disputes management's finding of full recovery, the employee will be placed on leave without pay and the case will be referred to the SIF for an appropriate benefit determination. If the employee appeals the findings of the SIF, the claim will be resolved by the Workers' Compensation Board whose decision is binding on the parties.
In exceptional cases, management may determine that a mandatory alternate
duty assignment in progress is not successful.
In that instance, management may elect to modify the mandatory alternate duty assignment to improve the prospects for success. Such changes should be discussed with the employee prior to being implemented. Alternatively, management may rescind the mandatory alternate duty assignment, in which case management is required to provide the employee with a supplement equal to the difference between the employee's full 100% statutory benefit rate and the partial disability benefit rate paid to that employee by the State Insurance Fund. Such supplement will not be paid beyond the point the mandatory alternate duty assignment would have expired. As previously stated, please telephone your GOER representative to initiate the payment of a supplement.
Agency Alternate Duty Policies
This Mandatory Alternate Duty Program, developed in connection with the negotiation of benefits covering occupational disabilities of CSEA- and DC-37-represented employees injured on or after July 1, 1992, does not negate existing agency discretionary alternate/light duty policies that may be available for disabled employees recovering from both occupational and ordinary disabilities. Any such agency policies continue to be available for employees not eligible for this Mandatory Alternate Duty Program. Agencies interested in establishing alternate duty programs in addition to this Program should contact their Governor's Office of Employee Relations representative for guidance.