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State Personnel Management Manual
Advisory Memorandum # 04-01

2200 Separations and Leaves
January 29, 2004

TO: Department and Agency Personnel and Human Resources Directors

FROM: Patricia A. Hite, Director – Law Bureau

SUBJECT: Amendment to Civil Service Law Section 71, Reinstatement after
Separation for Disability

On September 22, 2003, Governor George E. Pataki signed Chapter 577
of the Laws of 2003, to amend section 71 of the Civil Service Law regarding leaves of absence for an occupational injury or disease resulting from an assault sustained in the course of or arising out of employment.

Chapter 577 amends section 71, effective September 22, 2003, to extend the leave of absence for an employee who has been separated from the service by reason of a disability resulting from an assault sustained in the course of his or her employment to at least two years, unless the disability permanently incapacitates the employee from the performance of the duties of his or her position. Employees separated from the service due to any other kind of occupational injury or disease will continue to be entitled to a leave of absence of at least one year. The leave of absence provided for in section 71 is a cumulative absence of one year or two years, as appropriate. Upon exhaustion of the applicable cumulative leave of absence, the employee may be terminated from the position if he or she is unfit to perform the duties of his or her former position.

This new provision is retroactive and applies to incidents occurring prior to the effective date of the law. Any employee not terminated prior to September 22, 2003 is potentially affected by this legislation.

Chapter 577 does not provide a definition of the term “assault.” Therefore, the appointing authority must determine whether the injury is the result of an assault sustained in the course of employment based on the specific circumstances of each case. Where it is determined that the injury or disease is the result of an assault, the appointing authority is required to grant the two year minimum leave of absence to the affected employee.

The State Civil Service Commission will be issuing regulations to aid in the interpretation of the term “assault” as used in this statute. The Department of Civil Service, the Governor’s Office of Employee Relations, various State agencies, as well as the Personnel Council, will be consulted and have input on these proposed regulations before they are adopted.

Pending the adoption of regulations, we are defining the term “assault” to encompass only physical acts of violence and not verbal abuse or threats of physical injury without actual physical violence. If an appointing authority is unclear as to whether an assault is involved, guidance should be sought from Counsel’s Office (518) 457-3177 at the Department of Civil Service.

It is essential that appointing authorities determine whether an injury or disease is the result of an assault and give notice to the employee of the determination regarding his or her entitlement to the one year or two year leave of absence as soon as possible so as to avoid potential problems when seeking to terminate an employee upon exhaustion of the leave of absence.

When there is further guidance in determining what constitutes an assault for purposes of section 71, we will provide that information to you.

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