Leaves of Absence Without Pay
THIS POLICY BULLETIN REPLACES POLICY BULLETIN #98-02, issued December 29, 1998.
This policy bulletin is intended to be a guide to agencies on the topic of leaves of absence without pay.
Leaves of Absence Generally
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 the employee's status in that position. Employees may not have multiple simultaneous leaves from the same item/position. However, to completely preserve their rights, employees may be on leave from different positions in the same title, in the same or different jurisdictional classes.
Some types of leaves are termed "mandatory." Other leaves are termed "discretionary."
Usually a mandatory leave is granted when a permanent employee:
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 identified limitations or length of leave required are different, the employee must be given the leave terms which provide the employee with the most protection.
Usually a discretionary leave is granted when a permanent employee who is not eligible for a mandatory leave:
Basic Principles of Discretionary Leaves
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. The employee has the right to return to a position in their former title, jurisdictional class and appointment status.
When restoration to a hold occurs the agency designates the specific position. 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 (for example see CSEA, I.S.U. Article 12). Further, agencies may not arbitrarily or capriciously reassign employees, nor do so punitively.
An employee who refuses to return to a hold item which was moved to a different geographic location (i.e., different county) is considered to have declined a reassignment, and is eligible for reemployment list status, but the employee is not eligible for bumping or retreat.
An employee granted a mandatory leave while serving probation may request restoration to a hold item prior to end of the leave, and the agency must restore the employee. This right to return is only provided under rule and contract to an employee granted mandatory leave while serving probation (Rule 4.5).
An employee who has been temporarily or provisionally appointed to another competitive class position, within the same agency, must be restored upon request (Rule 4.10).
A contingent permanent employee who is affected by the return of a prior permanent incumbent must be offered restoration with permanent status to the hold item required for this purpose by Rules 4.11 and 4.12 provided the employee was originally appointed to the hold item in permanent status. If however, the employee was originally appointed to the hold item in contingent permanent status, and the agency 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 the employee return. If the one prior permanent incumbent has already returned, the contingent permanent employee may not return, regardless of seniority.
A contingent permanent employee who has completed probation may not voluntarily return to a hold item in the absence of a return of incumbent. Complete policy information regarding contingent permanent appointments and leaves can be found at SPMM 1810.
Non-competitive Class Appointments
A non-competitive phi designation on an employee's current position or the position to which the employee is appointed has no effect on the leave policies herein. See Advisory Memorandum #02-03 for more information.
Non-competitive class employees appointed pursuant to §55-b/c must be given a leave when appointed to ANY OTHER 55-b/c position. See Advisory Memorandum #02-03 and Policy Bulletin #11-01 for more information.
Exempt Class Appointments
Exempt class employees may be granted a discretionary leave of absence. However, the employee should be informed that the leave does not give the employee the right to return or to hold the position for any period of time. The exempt class employee continues to serve at will, albeit while on leave.
Pending Commission Review
Newly classified positions are competitive class positions until the Commission and Governor act to place them in another jurisdictional class (with the exception of titles the Commission has designated that "all" positions in the title are in a particular jurisdictional class, and, therefore a newly classified position is immediately placed in that jurisdictional class). After the Commission acts, the position is considered "pending non-competitive," "pending exempt," or "pending labor" as a shorthand way of keeping track of the status. But, in fact, the jurisdictional class does not change from competitive until the entire administrative process is complete and the resolution is filed with the Department of State. Therefore, a permanent competitive class employee appointed to such a pending position, or an incumbent whose position has been reclassified to a pending position, should be considered as having received an appointment to a competitive class position for the purposes of leave rights under the provisions of Rule 4.10.
When an exempt class position becomes vacant it is reviewed by the Commission. During the review period, only appointments in temporary status are permitted. A permanent competitive class or non-competitive class employee appointed on a temporary basis to such a position is not covered by Rule 4.10 or negotiated agreements and therefore any leave granted must be discretionary.
Summary of Mandatory Leaves of Absence by Type of Appointment
Depending upon the type of appointment that a permanent employee receives, various negotiated agreements and the Civil Service rules may require a leave of absence be provided from the current position. The following tables summarize this department's interpretations of the various rules, laws and negotiated agreements which mandate a leave of absence be provided when certain appointments occur. The compilation of the tables is intended to provide a complete catalog of the conditions under which mandatory leaves are provided. It is recognized that there is an overlap between the various authorities under which leaves are mandated. Where such overlaps occur, the leave which provides the greatest benefit to the employee, either in terms of duration or limitations, should be applied.
The rules refer to specific sections of the Classified Service rules. The negotiated agreements can be found on the GOER website at https://www.goer.ny.gov/Labor_Relations/Contracts/.
Promotion is defined as:
This department may update the tables on the online version of this Memorandum to reflect changes resulting from future negotiations or reinterpretation. When updated, the previous tables will be chronicled in the Staffing Division policy files.
Tables last updated: December 1, 2016
*NOTE: "permanent" is defined as having successfully completed probation.
*NOTE: "permanent" is defined as having successfully completed probation for purposes of this coverage by the contracts.
*NOTE: covers those non-competitive employees who are appointed from promotion lists when allowed to take promotion examinations pursuant to §52.11. Non-competitive class employees are not eligible for transfer.
*NOTE: Although they have separate appointing authorities, OMH and OPWDD are each considered one agency for the purposes of applying Rule 4.10.