NEW YORK STATE DEPARTMENT OF CIVIL SERVICE
DIVISION OF STAFFING SERVICES
ATTENDANCE AND LEAVE MANUAL
GENERAL INFORMATION BULLETIN 96-02
May 31, 1996

TO: Manual Recipients
FROM: Peter Elmendorf, Director - Personnel Services Division
SUBJECT: Counting Workers' Compensation Absences When Determining FMLA Eligibility

A number of questions have been raised about the status of workers' compensation disability absences when determining an employee's eligibility for FMLA leave. The purpose of this general information bulletin is to provide a detailed explanation of this issue.

Attendance and Leave Manual Policy Bulletin 94-01 states the eligibility criteria for FMLA entitlement as follows:

an eligible employee is one who has been employed for at least 12 cumulative months (52 cumulative weeks) and has performed a minimum of 1250 hours of service during the 12 consecutive months immediately preceding the date the leave is requested to begin.

The memorandum goes on to say that workers' compensation absences are "paid leaves" in many circumstances as indicated below. Other absences, even though the reason may be due to workers' compensation disability, are not treated as paid leaves for the purposes of determining overtime eligibility and, therefore, are not paid leaves for determining FMLA eligibility.

• Leave Program (including Council 82's Managed Care/Medical Evaluation Programs) -- All time that a person is receiving salary is a paid leave. This includes leave with pay without charge to credits, absences charged to credits and sick leave at half-pay (or STD). Once the employee has exhausted all of these paid benefits and is placed on sick leave without pay, the time does not count for eligibility purposes.
• Supplemental Pay Program -- The first 39 weeks of absence, whether or not the person actually receives a supplement, is considered paid leave. Also, all time charged to credits and to sick leave at half-pay (or STD) is paid leave. Again, once the employee is placed on sick leave without pay, the time does not count for eligibility purposes.
• Statutory Program -- The first 12 cumulative months of absence are treated as paid leave even though the individual is not receiving salary from the State payroll. (Salary may be received for some of this time, like the first five days when an employee is allowed to charge credits, but the vast majority of the time is without a State paycheck.)
• PEF Medical Evaluation Program -- For accidents on or after July 1, 1993 through April 1, 1995, the first 39 cumulative weeks of disability are treated as paid leave. For accidents on or after April 2, 1995, the first 12 cumulative months of absence are treated as paid leave.
• M/C Programs -- For accidents on or after July 1, 1992 through December 31, 1993, M/C employees charge absences to leave with pay with charge to credits and then are placed on sick leave at half-pay and leave without pay or STD and LTD as appropriate and eligible. Employees charging credits, on sick leave at half-pay or STD are in pay status; any other time does not count toward determining FMLA eligibility. For accidents on or after January 1, 1994, M/C's are treated as though in pay status for the first 12 cumulative months of absence regardless of actual pay status. At the end of that time, absence is no longer treated as paid leave automatically. The employee's status would be determined like an ordinary disability absence. That is, if the employee were still charging credits, the time is a paid leave. If the employee were on LTD, it is not paid leave and does not count toward FMLA eligibility.

A few examples of times when employees could be absent due to a workers' compensation disability and not have that time count toward the required 1250 hours include:

• When an employee subject to the Leave Program has exhausted all leave with pay without charge to credits, all leave with pay with charge to credits and all sick leave at half-pay, if eligible, and is placed on sick leave without pay status.
• When an employee subject to the Statutory Program has been absent for one cumulative year and has not yet been terminated. (This employee should also be placed on sick leave without pay status.)
• When a PS&T Unit employee hurt in 1994 has been absent more than 39 cumulative weeks and is, therefore, placed on a sick leave without pay status.

General Information Bulletin 96-01, dated March 1996, includes a chart that identifies the various workers' compensation benefits and their applicability. This should help you to identify which benefit applies to a particular individual for a particular absence. Please direct questions about this bulletin to the Personnel Services Division at (518) 457-2295 or (518) 457-5167.