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.]
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
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
Attachments [See Part 3]
P-2 TABLE OF CONTENTS (Part 1)
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...
...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'
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.
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.
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
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
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...
...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.
- No wage replacement benefit is payable if the absence due to
a workers' compensation injury or disease does not exceed seven
- 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
- 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...
...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.)
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.
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
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.
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:
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.
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."
Any other deductions not taken because the supplement was not sufficent
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...
...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.
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.
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
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...
...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
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.
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