MEMORANDUM
| 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:
- 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.
- Written notice of the Employee Health Services Unit physician's
findings.
- Written notice of the appointing authority's determination respecting
involuntary leave, and the reasons and facts in support thereof.
- Written notice of the employee's right to appeal the appointing
authority's determination, and the procedures for perfecting such
appeal.
- 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.
- 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.
- 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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