Section 26.3 Rules Applicable to Employees in Negotiating Units - July 2008
TO: Manual Recipients
Table of Contents
The following material has been prepared to assist you in implementing the new or revised attendance and leave provisions contained in the 2007-2011 Agreements between the State of New York and CSEA for employees in the Administrative Services Unit (ASU), Institutional Services Unit (ISU) and Operational Services Unit (OSU). References to applicable sections of the State Attendance and Leave Manual (Manual) are included.
Questions concerning this material should be directed to the Attendance and Leave Unit of the Department of Civil Service at (518) 457-2295.
The new or revised provisions are effective beginning January 4, 2008, the date of ratification of the Agreement, except as follows:
Manual Reference: 21.2
The language has been changed to provide that an employee's properly submitted written request for use of accrued vacation credits shall be answered in writing within five working days of receipt. The new language further provides that if an employee's request for use of accrued vacation credits is denied, the employee shall receive a written statement of the reasons for such denial within five working days of such denial. Reasons must be provided automatically without any further action on the employee's part.
The effect of the new language is to require that management must respond in writing to a properly submitted written vacation request from an ASU employee within five working days of receipt of that request. If the written response provided within that five working day period is a denial, the agency has an additional five working days from the date of the denial to provide the employee with a written statement of the reasons for that denial. The provision of reasons for denial must occur automatically; the employee is not required to make a request for reasons.
For example, if the agency denies a written vacation request two working days after it is submitted, the agency has five additional working days from the date of the denial (seven working days from the submission of the request) to provide reasons for the denial. If, however, the agency denies a written vacation request five working days after it is submitted, the agency has five additional working days from the date of the denial (ten working days from the submission of the request) to provide reasons for the denial.
When management exercises its right to establish a date or dates by which a request for a block of time must be submitted, the parties agreed that the time periods for response and for provision of reasons for denial for employees in the ASU are calculated from the end of the request period and not from the actual date during that period that individual requests were submitted. For example, if agency management designates the period of October 15 through October 31 as the period during which an employee who wishes to take a block of time off during the December holiday period must submit a vacation request, the time periods for response and provision of...
... reasons commence as of October 31, close of business, the end of the designated request period. For example, an ASU employee who works a Monday through Friday schedule submits a vacation request for Christmas week during the agency-designated block request period of October 15 through October 31, 2008. The agency must notify the employee that the request was approved or denied by Friday, November 7, close of business. Assuming that the employee was notified of the denial of the request on Friday, November 7, the agency has until Monday, November 17, 2008 to provide reasons for the denial. For this purpose, floating holidays, such as Election Day, count as workdays but regular holidays such as Veterans' Day do not count as workdays.
The language in Appendix IV of the ASU agreement has been modified to reflect the change to Article 10.4(b).
Under the prior collective bargaining agreement, agencies were required to provide a written response to an employee's written request for use of vacation within five working days of the receipt of the vacation request. Agencies were also automatically required to provide written reasons for denial within five working days of the receipt of the vacation request.
Agencies are reminded that when reasons for denial of vacation requests must be given, these written statements of denial or cancellation need not be any more explicit than is necessary to indicate the basis therefore – it is not intended that they be so lengthy or explicit as to serve as "proof" that the denial or cancellation was absolutely necessary or essential to the proper conduct of agency business. Failure to provide the written statement of the reasons for denying an employee's request for vacation may be grieved as a contract grievance. However, the denial itself may be grieved only as a non-contract grievance.
Manual Reference: 21.8
The language of Article 11 has been modified to provide that employees receiving Workers' Compensation payments for a period of disability found compensable by the Workers' Compensation Board that is caused by an assault occurring in the course of their employment shall be treated as though on the payroll for the length of the disability, but not to exceed twenty-four months per injury, for the sole purpose of health insurance and Employee Benefit Fund contributions normally made by the State. This provision is also applicable to employees in leave without pay status pending determination of a controverted or contested claim arising from an assault once the claim is decided in the employee's favor.
This new provision is applicable to disabling incidents due to assault occurring on or after July 1, 2008. For disabling incidents due to assault occurring prior to July 1, 2008, the period for which...
... an employee is treated as though on the payroll for the purposes of health insurance and Employee Benefit Fund contributions normally made by the State remains capped at 12 months.
For purpose of accruing seniority, continuous service, and accrual of vacation, sick leave and personal leave, employees subject to the new provision continue to be treated as though on the payroll for up to 12 months per injury. Similarly, such employees continue to be treated as though on the payroll for up to 12 months per injury for the purposes of retirement credit and contributions made by the State and/or the employee.
The provisions of Article 11 applicable to injuries other than those resulting from assault incurred in the course of employment remain unchanged.
Manual Reference: 21.3
The description of satisfactory medical documentation contained in the Sick Leave section of the CSEA Attendance and Leave Appendices has been modified. The new provision states that a brief medical diagnosis will not be required unless the employee has been absent from work due to illness or injury for more than 30 consecutive calendar days. The side letter on medical documentation confirms this "30-day requirement" and clarifies the circumstances under which the requirement applies.
This 30-day restriction on requiring a brief diagnosis applies to medical documentation requested by the agency in connection with absences for personal sick leave and non-occupational illness. It applies to such absences regardless of whether they are charged to sick leave credits or to other credits used as sick leave as well as to absences on sick leave at half-pay and sick leave without pay. It applies to return to work examinations pursuant to Section 21.3 of the Attendance Rules and Articles 10.17 (ASU, OSU) and 10.19 (ISU) of the State/CSEA Agreements. See Applicability below for a more detailed discussion.
The new provision applies only to the content of required medical documentation. It has no impact on the frequency with which medical documentation can be requested under the Attendance Rules and negotiated agreements. While employees in these units may not be routinely required to submit medical certificates for sick leave absences of four workdays or less, agencies continue to have the right to require medical certificates of employees who are absent for four days or less whenever such requirement is reasonable under the circumstances. Examples of circumstances where such requests are reasonable include situations when there is reason to believe the employee is not incapacitated from the performance of the duties of the position, when the employee has consistently abused leave privileges or when the employee fails or refuses to explain the absence in question. Furthermore, agencies continue to have the ability...
... in certain situations to place an employee on notice that medical documentation will be required for every future absence during a specified time period. See Section 21.3, pages C-14-15, of the Manual for a discussion of frequency of medical documentation.
Under the new provision, agencies continue to be entitled to request a brief diagnosis as part of required medical documentation once the absence exceeds 30 consecutive calendar days.
For absences for personal illness and non-occupational injury covered by the new provision, the 30-day restriction applies only to the diagnosis portion of the medical documentation. Other parts of the description of satisfactory medical documentation contained in the Sick Leave section of the CSEA Attendance and Leave Appendices remain unchanged. For example, satisfactory medical documentation specifies the inclusive dates of disability covered by the doctor's note and date or dates of treatment during the period covered, contains a certification that the employee is disabled from the performance of his or her job duties, specifies the anticipated date of return to work and is signed by an appropriate medical practitioner. See Section 21.3, pages 3-4 [R3-R4] of the Manual for a list of appropriate medical practitioners.
The language regarding brevity applies only to the medical diagnosis portion of the discussion of satisfactory medical documentation. The criteria set forth in the Sick Leave section of the CSEA Attendance and Leave Appendices represent minimal standards in order for documentation to be deemed acceptable, and thus represent a floor, not a ceiling. Agencies continue to have the right to request such information as is deemed appropriate and necessary to support authorization for an absence, use of leave benefits, and fitness to return to work from such absence. However, agency policies must comply with this 30-day restriction on requiring a brief diagnosis.
The restriction on the circumstances under which an employer may request a diagnosis applies solely to a requirement imposed by the agency for the employee to provide a diagnosis. No violation has occurred if the agency comes into possession of that information because, for example, it has been voluntarily provided by a health care provider or a carrier.
The determination as to whether medical documentation is satisfactory rests with the appointing authority and is not grievable.
The 30-day restriction on diagnosis does not apply to absences designated as FMLA leave. The FMLA has its own restrictions on the type of medical information that can be required. Accordingly, for absences covered under the FMLA, agencies should continue to request information contained in the USDOL FMLA Certification of Health Care Provider Form. That form does not require a diagnosis but authorizes the request of information such as what part of the FMLA definition an employee qualifies under, a description of the medical facts the health care provider relied on in making that determination, estimated number and nature of treatments, anticipated duration and frequency of episodes of incapacity, etc.
The 30-day restriction on diagnosis does not apply to absences under Section 72 of the Civil Service Law. Agencies should continue to follow established procedures for absences under that section.
The 30-day restriction on diagnosis does not apply to medical documentation in support of requests for reasonable accommodation under the Americans with Disabilities Act or the New York State Human Rights Law.
The 30-day restriction on diagnosis does not apply to absences under Section 71 of the Civil Service Law or to absences covered by the Workers' Compensation Law and Article 11 of the CSEA Agreements. Both the appointing authority and the State Insurance Fund continue to be able to request whatever information is deemed necessary, including information concerning the employee's medical diagnosis, in administering workers' compensation benefits authorized by law, rule and contract provisions. For example, agencies continue to be able to request medical diagnosis on the Estimated Physical Capabilities Form for New York State Employees in connection with an employee's request for light duty.
However, when a case is controverted, the employee is no longer deemed to be on workers' compensation leave and the 30-day restriction on medical diagnosis is applicable until such time as the controversion is resolved in the employee's favor.
Manual Reference: Appendix H, Leave Donation Program
Provisions pertaining to leave donation across agency lines by other than family members, which were pilot provisions under the 2003-2007 CSEA Leave Donation Program are now permanent. All other program provisions remain unchanged.
At the present time, the ability to donate across agency lines to other than family members has been made a permanent part of the program for CSEA, RRSU, PS&T, PSNU and M/C employees. Therefore employees in the CSEA units may continue to exchange leave donations...
... across agency lines with other CSEA unit employees, with employees in the RRSU, PS&T and PSNU units, and with those designated M/C, regardless of whether the donor and recipient are family members.
For employees in SSU, SSpU and ALES, the entire Leave Donation Program has been temporarily extended until March 31, 2009. While these extensions of the Leave Donation Program for the security units are in place, employees in the CSEA units may continue to exchange leave donations with employees in these units, including donations across agency lines, regardless of family relationship.
Detailed Leave Donation Program Guidelines will be issued following the conclusion of the negotiation process. Until those updated guidelines are issued, agencies should refer to Policy Bulletin 2004-02 dated August 2004 and to Policy Bulletin 2001-02 dated March 23, 2001.
Manual Reference: 23.1, 23.3
The agreements create a new Over40 Comp Time program, the Over40 Comp Time II Pilot Program, effective July 1, 2008. The program years under the Over40 Comp Time II Pilot Program will run from July 1, 2008 through June 30, 2009, July 1, 2009 through June 30, 2010 and July 1, 2010 through June 30, 2011. Actual dates may vary slightly to coincide with payroll periods. The 2008-2009 program year will run from June 26, 2008 through June 24, 2009 (Administration payroll) and from June 19, 2008 through June 17, 2009 (Institution payroll).
Employees may enroll in the program each year for a one-year period during each of the three years of the pilot. The enrollment period for the 2008-2009 Program Year ran from Thursday, June 5, 2008 through Wednesday, June 18, 2008.
Comparison of Over40 Comp Time I and Over40 Comp Time II
Over40 Comp Time II
Enrollment continues in effect for the remainder of the program year even if employees move to a different agency, so long as the movement is to an overtime eligible position represented by CSEA, PEF or DC 37. Participation in the program ends upon appointment to an overtime ineligible position and/or to a position in a bargaining unit not represented by CSEA, PEF or DC 37.
Once the 240 hour maximum is reached, employees participating in Over40 Comp Time II receive cash compensation for overtime worked from that point forward until such time as their balance is reduced below 240 hours, at which point they resume being credited with Over40 Comp Time II for overtime worked. For example, in September, a participating employee reaches the 240 hour maximum and is no longer eligible to be credited with Over40 Comp Time II. Subsequently, during the annual cash out election period, the employee files an election form to liquidate 120 hours of Over40 Comp Time II which is payable in December. The 120 hours the employee elected to liquidate are deducted from his time record as of the date the election form is received in the Personnel Office. Effective as of the date the employee's Over40 Comp Time II balance is reduced below 240 hours, the employee is again credited with Over40 Comp Time for overtime worked.
The 240 hour maximum includes unused Over40 Comp Time credits earned under the 2003-2007 Over40 Comp Time I program standing to the employee's credit at the time he/she enrolls in the Over40 Comp Time II program. Those credits are carried forward on the employee's time record in the Over40 Comp Time II category merged with credits actually earned under the...
... Over40 Comp Time II program into a single leave category and are henceforth subject to the provisions of the Over40 Comp Time II program.
Unavailability for Use as a Leave Accrual
Annual Cash Out
Employees who have accrued Over40 Comp Time II credits on their time records do not have to be currently enrolled in a program year in order to participate in the annual cash out. This is true regardless of whether the employee is eligible to enroll but elects not to do so or is currently employed in an overtime ineligible position and/or in a bargaining unit not represented by CSEA, PEF or DC 37.
If the pilot program is not extended beyond its scheduled expiration in June 2011, there will be a final opportunity in October 2011 to elect to cash out up to 120 hours of Over40 Comp Time II payable in December 2011.
Retention of Credits and Lump Sum Payment
As is the case with overtime compensatory time earned for hours between 37.5 and 40, employees are entitled to a lump sum payment for accrued and unused Over40 Comp Time II credits upon movement to the unclassified service, movement under a reciprocal agreement, movement to an institution teacher position, movement to a classified service position in another agency or upon separation from State service for any reason. The lump sum value of Over40 Comp Time II credits is the rate of pay earned at the time of liquidation but in no event shall it be less than FLSA requirements.
Over40 Comp Time II credits, like regular overtime compensatory time credits, are carried forward when employees move between classified service positions in the same agency, including movement between facilities and institutions within such agencies as State University of New York, the Departments of Correctional Services and Health, and the Offices of Mental Health, Mental Retardation and Developmental Disabilities, and Children and Family Services. This occurs even if the new position in the same agency is overtime ineligible and/or in a non-participating bargaining unit.
Over40 Comp Time I
Availability for Use as a Leave Accrual
Ineligibility for Annual Cash Out
Retention of Credits and Lump Sum Payment
As is the case with overtime compensatory time earned for hours between 37.5 and 40, employees are entitled to a lump sum payment for accrued and unused Over40 Comp Time I credits upon movement to the unclassified service, movement under a reciprocal agreement, movement to an institution teacher position, movement to a classified service position in another agency or upon separation from State service for any reason. The lump sum value of Over40 Comp Time I credits is the rate of pay earned at the time of liquidation but in no event shall it be less than FLSA requirements.
Over40 Comp Time I credits, like regular overtime compensatory time credits, are carried forward when employees move between classified service positions in the same agency, including movement between facilities and institutions within such agencies as State University of New York, the Departments of Correctional Services and Health, and the Offices of Mental Health, Mental Retardation and Developmental Disabilities, and Children and Family Services.
Manual Reference: Appendix E, Seasonal Employment
Section C(2) of the Seasonal Appendix has been revised to permit seasonal leave credits earned under that section to be carried forward beyond the point they would otherwise expire when a seasonal employee receives a permanent appointment in the same agency. Specifically, seasonal employees who meet the eligibility criteria set forth in Section C to be credited with seasonal leave credits under that section and who subsequently receive a permanent appointment in the same agency are entitled to retain those seasonal leave credits for a period of one year from the date of that permanent appointment.
For purposes of this provision, appointment within the same agency includes appointments between facilities of the same agency (for example, between facilities within the Department of Correctional Services, between SUNY campuses, etc.) Appointment within the same agency also applies to appointments between regions within an agency such as the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation or the Department of Transportation.
Under Section C(2) of the Seasonal Appendix, seasonal leave credits are credited to eligible employees at the start of each fiscal year and expire at the end of that fiscal year. However, under the new benefit, if a seasonal employee described in Section C(2) receives a permanent appointment in the same agency, the employee is entitled to retain unused seasonal leave credits for a period of one year from the date of the permanent appointment. For example, if an eligible seasonal employee was credited with seasonal leave effective April 1, 2007 and on March 5, 2008 receives a permanent appointment in the same agency, the employee is entitled to carry such unused seasonal credits beyond the point they would otherwise expire (March 31, 2008) for...
... a period of one year from the date of the permanent appointment (through March 4, 2009 in this example). Any seasonal leave credits still standing to the employee's credit as of March 4, 2009 close of business would lapse.
Previously, seasonal leave credits expired March 31 of each fiscal year without exception and could not be carried forward upon appointment to a non-seasonal position.
Credits carried forward are to be retained in a separate category on the employee's time record and are available for use, subject to prior approval, for absences for personal reasons and for unscheduled absences due to illness subject to applicable provisions on medical documentation. However, such credits are not available for use in connection with the Productivity Enhancement Program. Furthermore, seasonal leave credits carried forward do not have a cash-out or retirement value, if the employee separates from service prior to exhausting such credits.
The ability of eligible employees to carry unused seasonal leave credits forward does not in any way reduce or diminish entitlement to leave benefits under the Attendance Rules. For example, if an employee who has unused seasonal leave credits receives a permanent appointment to a full time annual salaried position in the same agency, the employee is entitled to carry those unused seasonal leave credits forward and, in addition, has all the leave benefits that flow from appointment to an annual salaried position – immediate coverage under the Attendance Rules, immediate eligibility to accrue sick leave and to be credited with 5 days of personal leave, as well as eligibility to be credited with vacation after the completion of 13 cumulative biweekly pay periods of service on a qualifying schedule. Periods of service in the seasonal position, if on a qualifying schedule, may count toward completion of that 13 cumulative biweekly pay period requirement. See Section 26.1 pages 7-9 [R7-R9] of the Manual for a discussion of movement from an hourly paid position (including a seasonal position) to an annual salaried position.
This provision applies to appointments to permanent positions in the same agency that occur on or after January 4, 2008.
Manual Reference: 26.3
The Productivity Enhancement Program (PEP) allows eligible employees to exchange previously accrued annual leave (vacation) and/or personal leave in return for a credit to be applied toward their employee share NYSHIP premiums on a biweekly basis.
In order to enroll an employee must:
The program will be available for calendar years 2008, 2009, 2010 and 2011. Eligible employees may elect to participate in any of the four years of this program. Full time employees who enroll in the program will forfeit three days of accrued annual or personal leave standing to their credit at time of enrollment in each year of participation. In 2008 and 2009, the value of such credits will be $450 per year to be applied toward the employee share of NYSHIP premiums deducted from biweekly paychecks during the program year. In 2010 and 2011, the value of such credit will be $500 per year to be applied toward the employee share of NYSHIP premiums deducted from biweekly paychecks during the program year. The program is available to eligible part-time employees on a prorated basis.
The enrollment period for participation in the 2008 PEP year commenced January 9, 2008 and ended February 11, 2008. A detailed program description is contained in Policy Bulletin 2007-01, Implementation of the Productivity Enhancement Program for 2008 for Managerial/Confidential, CSEA Represented and DC 37 Represented Employees, dated December 2007.
This is a pilot program that will sunset December 31, 2011 unless extended by mutual agreement of the parties.
Manual Reference: 21.3
This new side letter reflects the agreement of the parties that the issue of sick leave accumulation to be used for the payment of health insurance in retirement and the adequacy of the current 200 day cap shall be reviewed and discussed in Statewide Labor/Management.
Manual Reference: 26.3
This new side letter confirms that the parties agree that it is appropriate for local labor/management committees to discuss an increase in the three-month period provided in the cited contract articles (ASU Article 10.18, ISU Article 10.21, OSU Article 50.4). Any local labor/management agreement reached which modifies the three-month time period shall provide that such agreement may be terminated upon notice provided by either party. In the event that such labor/management agreement is terminated, the contract articles shall apply.
The contract provisions remain unchanged and continue to provide that an employee's shift, pass day and work location assignment, as applicable, shall be held for three months when an employee is on an authorized absence due to an on the job injury or for maternity purposes or for extended illness including sick leave at half-pay. However that hold does not apply where rebidding occurs while leave is in effect or where the employee's shift, pass day or work location assignment would have otherwise terminated, e.g. change in seasonal shift, closure of building or facility, etc.
Manual Reference: Section 21.2
This is a renewal of a side letter from the 2003-2007 Agreements. The side letter requires that the following reminder be included in this contract implementation memo:
The 30-day limit on vacation lump sum payment upon separation from service remains unchanged.