T0: All Personnel Officers

SUBJECT: Revision of Section 72 of the Civil Service Law

On July 20, 1983, Governor Cuomo signed Chapter 561 of the Laws of 1983. This chapter amends Section 72 of the Civil Service Law which governs involuntary leave for disability other than that resulting from occupational diseases or injuries.

Essentially, the amendment has two purposes. First, it extends the coverage of Section 72 to physical disability. Before it, disciplinary proceedings, under Section 75 or appropriate articles of the negotiated agreements, were the only avenues available to place an employee on involuntary leave for physical disability.

More important, this new Section 72 enjoins upon appointing authorities certain steps and timetables which carts have identified as fundamental due process requirements (see our March 18, 1980 memo to all agencies regarding Laurido). Failure to observe the rules set out in Section 72 has previously led to reversal of a number of agency suspension actions against workers, the payment of lost wages and restoration of benefits. We therefore suggest that agencies discuss all Section 72 cases with the Department of Civil Service's Counsel's Office before proceeding.

Specifically, Section 72 provides:

1) Except as described in (2) below, before an agency can place an allegedly mentally or physically unfit employee on leave of absence, the following procedures must be followed within the noted times:

Procedure	Timing
a) Written notice to employee and Civil Service Commission of appointing authority's judgment of inability to perform duties. This notice should set forth all the facts which form the basis for the agency's judgment that the employee is unable to perform his or her duties.	Begins process and must be given to employee prior to conduct of medical examination.

*In cases where no precise time limit is specified for completion of a procedure, due process nonetheless requires that it be handled expeditiously.

b) Agency request to Employee Health Service to schedule medical examination (EHS should be notified that it is in connection with a S72 proceeding).

c) Medical determination as to fitness sent by Employee Health Service to employee and agency.

d) Written notice to employee of agency intent to place employee on leave (including statement of reasons) for proposed leave, proposed effective date and employee's rights under this procedure; served in person or by first class, registered or certified mail, return receipt requested).

e) Employee appeal to agency (filed personally or by first class, certified or registered mail, return receipt requested). Leave suspended pending appeal.

Must be filed within 10 working days of service of notice of intent.

f) Agency provides EHS with copy of appeal. EHS provides agency with all data supporting certification of unfitness (diagnoses, test results, observations, etc.) which must be transmitted to employee or representative.

Upon receipt of request to appeal.

g) Due process hearing conducted by mutually agreed upon independent hearing officer. (If parties are unable to agree, the hearing officer must be selected by lot from a list established by the Department of Civil Service.) Employee has right to be represented by counsel or recognized employee organization and may present medical experts and other witnesses. Burden of proof is on person alleging unfitness. Technical rules of evidence shall not be followed. Record of hearing and recommendations to be provided to employee and t o agency. Upon request, employee is to be given free copy of transcript.

Must be afforded within 30 calendar days of receipt of appeal.

h) Written notice to employee of agency's final decision with notice of right to appeal to Civil Service Commission

Within 10 working days of receipt of hearing officer's report, * but no later than 75 calendar days from receipt of appeal.

*See Chapter 547 of the Laws of 1984

i) Pursuant to Section 72.3, leave begins even if an appeal is taken.

2) Subdivision 5 permits the appointing authority to place an employee on immediate involuntary leave of absence where there is probable cause to believe that the employee's continued presence on the job represents a potential danger to persons or property or would severely interfere with agency operations. Employees are entitled to all of the due process procedures described above, although they may be removed from the workplace before the process begins or at any time during the process. Notice to the employee of the facts providing the basis for the appointing authority's judgment of unfitness should be given, ideally, within 48 hours after placing the employee on immediate involuntary leave but in no event more than 10 calendar days following the effective date of such leave. (Although the appointing authority must be able to support its reasons far invoking subdivision 5, this need not be separately stated in the initial notice.) An employee placed on immediate involuntary leave is entitled to the restoration of any leave credits charged or salary lost because of such involuntary leave if the employee is ultimately found to be mentally and physically fit. The restoration of salary is subject to reduction by any compensation earned in other employment and by any unemployment benefits received.

3) An employee on leave of absence pursuant to Section 72 is entitled to be considered on such leave for not less than one year (during which time use of available leave credits is permitted). The employee may apply to the Civil Service Department for a medical examination and must be reinstated if the medical officer certifies that the employee is physically and mentally fit to perform the duties of his or her position. (Note that in the event action is taken pursuant to Section 72.4 by the appointing authority to terminate the employee as provided in Section 73, the reinstatement provisions of Section 73 apply.)

A copy of the legislation is attached for your information. [Not attached here.]

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