ATTENDANCE AND LEAVE MANUAL
ADVISORY MEMORANDUM NO. 2011-06
Section 21.3
December 2011
TO: Manual Recipients
FROM: Blaine Ryan-Lynch, Director of Staffing Services
SUBJECT: Return to Work Evaluations and Civil Service Law Section 72 Procedures
On November 17, 2011, the New York State Court of Appeals decided two cases, Sheeran v. New York State Department of Transportation, and Birnbaum v. New York State Department of Labor (__NY3d __)which held that Civil Service Law (CSL) section 72 procedures apply to situations where an employee is out on sick leave and seeks to return to duty. The Court held that a refusal to allow the employee to return to work constitutes an involuntary leave for ordinary disability and requires the appointing authority to use the procedures available under CSL section 72. Accordingly, from this point onward, all appointing authorities must revise their leave procedures to follow this Court mandate.
Any agency may still have employees that seek to return to work from sick leave evaluated by the Employees Health Service (EHS) to verify the employee's fitness for duty. Previously, however, agencies had been advised that pursuant to provisions in the Negotiated Agreements and the Attendance Rules, any employee who was found unfit by EHS could be kept out of work until found fit for duty. The employee was not entitled to a hearing to contest the agency determination to deny them a return to duty. This is no longer the case.
The provisions relating to medical examinations required of employees in accordance with Subdivision (e), Section 21.3 of the Attendance Rules for State employees remain unchanged, with the exception of the employee's right to appeal the appointing authority's decision to prevent the employee from returning to work upon EHS finding them unfit for duty.
Once the appointing authority has received a recommendation from EHS that the employee is not fit to return to duty, they have the option of allowing the employee to return to work against the recommendation of EHS, or they can hold the employee out and provide them with the due process notification now required under CSL section 72.
Any employee found unfit by EHS and who the agency determines should not be returned to duty must be given notice that the agency proposes to change the voluntary leave status to an involuntary leave under CSL section 72 and that the employee has the right to object to that proposed involuntary leave and request an administrative hearing in exactly the same manner as would be given any employee being put on leave pursuant to CSL section 72. Appointing authorities should follow the procedures, as outlined below:
A) Written notice to employee of agency intent to place employee on involuntary leave (including statement of reasons) for proposed leave, proposed effective date and employee's rights under this procedure; served in person or by first class, registered or certified mail, return receipt requested). |
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B) Employee appeal to agency (filed personally or by first class, certified or registered mail, return receipt requested). Leave suspended pending appeal. |
Must be filed within 10 working days of service of notice of intent. |
C) Agency provides EHS with copy of appeal. EHS provides agency with all data supporting certification of unfitness (diagnoses, test results, observations, etc.) which must be transmitted to employee or representative. |
Upon receipt of request to appeal. |
D) Due process hearing conducted by mutually agreed upon independent hearing officer. (If parties are unable to agree, the hearing officer must be selected by lot from a list established by the Department of Civil Service.) Employee has right to be represented by counsel or recognized employee organization and may present medical experts and other witnesses. Burden of proof is on person alleging unfitness. Technical rules of evidence shall not be followed. Record of hearing and recommendations to be provided to employee and to agency. Upon request, employee is to be given free copy of transcript. |
Must be afforded within 30 calendar days of receipt of appeal. |
E) Written notice to employee of agency's final decision with notice of right to appeal to Civil Service Commission. |
Within 10 working days of receipt of hearing officer's report, * but no later than 75 calendar days from receipt of appeal. |
F) Pursuant to Section 72.3, leave begins even if an appeal is taken. |
*See Chapter 547 of the Laws of 1984
Importantly, unless the agency has probable cause to believe that the unfit employee represents a danger to persons or property or would severely interfere with agency operations, the employee must be returned to his or her job upon the timely filing of an objection to the proposed involuntary leave and/or a hearing request.
If the agency does have probable cause to believe the employee is dangerous or would be severely disruptive, the employee may be kept out of work pursuant to CSL section 72(5) as long as the employee is given notice of that determination in the same manner as would be given to an employee being put out of the workplace under CSL section 72(5).
The Department will be modifying both the SPMM and Attendance and Leave Manual to reflect the changes resulting from these Court decisions. If you have any questions regarding the new procedures, please feel free to contact the Attendance and Leave Unit of the Department of Civil Service at (518) 457-2295.