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State Management Personnel Manual


T0: All State Departments and Agencies
FROM: Office of Counsel, Department of Civil Service
SUBJECT: Leave for Disability--Section 72 Civil Service Law
DATE: March 18, 1980

Section-72 of the Civil Service Law authorizes an appointing authority to place an employee on leave of absence if, upon medical examination, a medical officer certifies that the employee is not mentally fit to perform the duties of his position. An employee on such leave is entitled to use all available leave credits in connection with such determination.

Federal courts have held that Section 72 of the Civil Service Law did not provide for "due process," which resulted in the courts viewing the placement of persons on such leave as un-constitutional.

In a recent decision, Judge Haight of the U. S. District Court, Southern District of New York, set forth certain procedures which, if followed, would overcome the criticism of the courts with respect to due process. The order of the court provided that the State is enjoined from placing employees on involuntary leave of absence based on a finding of mental unfitness to perform the duties of the position unless prior thereto the following procedures are accorded the employee:

  1. Written notice of the facts relied upon by the appointing authority to suggest that the em-ployee is not mentally fit to perform the duties of his or her position, in advance of the employee's examination by an Employee Health Services Unit physician.
  2. Written notice of the Employee Health Services Unit physician's findings.
  3. Written notice of the appointing authority's determination respecting involuntary leave, and the reasons and facts in support thereof.
  4. Written notice of the employee's right to appeal the appointing authority's determination, and the procedures for perfecting such appeal.
  5. Pre-hearing release to the employee or his or her authorized representative of the employee's medical records and related data, upon written request of the employee, or the employee's personal physician or attorney, where authorized.
  6. Upon timely request, an adversarial-type hearing, before an impartial decision-maker, at which hearing the employee may be represented by counsel and may present evidence on his or her own behalf.
  7. Written notice of the hearing decision, together with a statement of the reasons and facts relied upon in support thereof.

In addition,the court recognized that there might be compelling circumstances which would require the immediate suspension of an employee for the safety of the employee, the employee's co-workers, or the public, or for the proper conduct of business.
The court indicated that under such circumstances, while an immediately pre-hearing leave of absence may be directed, the procedure described above must be provided within a reasonable time thereafter. The court also indicated that should the employee succeed in reversing the initial determination, reinstatement together with back pay and the restitution of leave credits would be required.

Although this may be further refined by the court, agencies are advised that they should provide for the notice and hearing described above in connection with a determination by an appointing authority to place an employee on leave pursuant to Section 72 of the Civil Service Law. we shall advise you if there are any substantive changes in this regard.

If you have any questions concerning the procedures to be followed in this regard, please contact the undersigned, 457-7659, for additional information.

Signed, Harvey Randall

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