Leaves of Absence for State Employees

Only permanent employees of New York State may be given a leave of absence.

The purpose of any leave of absence without pay is to provide employees with their appropriate tenure protection, promotion rights, and layoff rights based upon their status in that position. Some types of leaves are termed "mandatory." Other leaves are termed "discretionary."

Mandatory leaves are required by Civil Service Law or rule or negotiated agreement, or Federal law, or State policy. Discretionary leaves are governed by Rule 5.2.

Usually mandatory leaves are granted when permanent employees:

• are promoted or transferred to a position in which they must serve a probationary period
• are appointed on a temporary, provisional, or contingent permanent basis to another position within their agency
• must be absent for a reason specified in the Family & Medical Leave Act
• are absent for reasons specified in the State Military Law or Federal Uniformed Services Employment and Reemployment Rights Act
• are unable to perform the duties of their positions due to disability

When an employee must be granted a leave in a situation governed both by a Civil Service law or rule, and a negotiated agreement, and the length of leave required is different, he/she must be given the longer leave of absence.

Usually discretionary leaves are granted when permanent employees who are not eligible for a mandatory leave

• request a leave because they have received an appointment to a position in a different jurisdictional class, or in another agency, or on a temporary or provisional basis, or
• request a leave for educational, parenting, or other personal reasons.

Discretionary leaves may be granted by an agency for up to two years. Extensions beyond two years must be approved by the Civil Service Commission.

Basic Principles of Discretionary Leaves

• A leave is discretionary if it is not mandatory.
• Rule 5.2 permits an appointing authority to grant a discretionary leave for two years. At the end of this initial two years permission to extend such leave must be granted by the Civil Service Commission.
• In some cases the courts have viewed a discretionary leave as being essentially a "contract" between an employee and his/her appointing authority. For the specified period the employee is entitled to be absent and, at the end of that period, to return. The terms of these contracts may only be changed by mutual consent, except that, when the employee has been given such a leave to serve in another position and is terminated or laid off from that position, the employee must be permitted to return.
• A leave of absence does not prohibit the agency from dealing with the position in the normal course of business, e.g., filling the position, abolishing the position or assigning the position to a different location.
• Employees may not be on mandatory leave and discretionary leave simultaneously from the same position.
• Where an extension or further extension is not granted, the employee must serve for 6 months in his/her former position (i.e., title and status) before the agency may grant him/her a "new" discretionary leave which does not require Commission approval.
• State policy requires prior approval for certain discretionary leaves of absence from the Director of State Operations.

Rights to Return to a Hold Item

• Although for the sake of record-keeping a position (called a "hold item") is always identified, and usually the employee returns to it, management's right to assign and reassign staff among available positions overrides any right to a specific position, or even a location. For the sake of brevity, the word position will be used throughout, although more accurately the employee's right is to return to a position in their former title, jurisdictional class and their former appointment status.
• When restoration to a hold item occurs, the agency designates the specific item. Agencies may change designated hold items and may reassign hold items to different locations at any time. (However, some negotiated agreements may provide rights and limitations when employees return. See CSEA, I.S.U. Article 12. Further, agencies may not arbitrarily or capriciously reassign employees, nor do so punitively.)
• Employees who refuse to return to a hold item which was moved to a different geographic location (i.e., different county) are considered to have declined a reassignment, and are eligible for reemployment list status, but they are not eligible to bump or retreat.
• Probationers may request restoration to a hold item prior to end of their leave, and the agency must restore them. (Rule 4.5)
• Employees who have been temporarily or provisionally appointed to another competitive class position in their agency must be restored upon request (Rule 4.10).
• Contingent permanent employees who are affected by return of a prior permanent incumbent must be offered restoration with permanent status to the hold items required for this purpose by Rule 4.11 provided they were originally appointed to their hold items on a permanent basis. If, however, they were originally appointed to their hold items on a contingent permanent basis, and agencies have made subsequent contingent permanent appointments to the same position, a comparison of the seniority dates (seniority dates are determined in accord with §80, or §80-a of the CSL) of all the contingent permanent appointees is required. Only if the returning former contingent permanent employee is the most senior may he or she return. If the one prior permanent incumbent has already returned, the contingent permanent employee may not return, regardless of seniority. Contingent permanent employees who have completed their probation may not voluntarily return to these hold items in the absence of a return of incumbent.