LOSS OR SUSPENSION OF NECESSARY LICENSE OR
CERTIFICATION

We have reviewed the procedures that we have recommended agencies follow when they discover that a tenured employee has lost the license or certification which is either required by law for a speck title, or required to lawfully perform a substantial and essential duty of the position.

Contrary to what we said in 1982, when an agency wants to remove an employee who has lost, or had suspended, any necessary license or certification, and who is entitled to tenure pursuant to Section 75 of the Civil Service Law (or an applicable collective bargaining agreement) the agency must prosecute the employee under §75 or the appropriate contractual article for incompetence.

To support discharge or suspension, the agency will be required to prove that:

1. there has been a loss or suspension of license or certification and,
2. the license or certification is required for the lawful or effective performance of an essential duty of the position.

An agency may, in its discretion, temporarily appoint such an employee to another title, or permit the employee to remain temporarily in the same title until the license or certification can be regained. However, N an employee is reassigned to limited or special duties for any considerable period, it may be difficult to prove the essential nature of the license/certification in any subsequent proceedings under §75 or the appropriate collective bargaining agreement.

Note further that:

• permanent competitive employees may be removed pursuant to §50 of the Civil Service Law if, at the time of hire, they lacked the necessary license/certification;
• employees who are not entitled to tenure as a matter of law or contract, who lose a required license/certification, may be removed in the same manner as would occur with any non-tenured employee,
• probationary employees who lose a required license/certification may be terminated without a hearing after the end of the eighth week of their probationary period.

As a matter of good practice, it is strongly advised that agencies tell any employee, even a non-tenured employee, that it is the agency's belief than a necessary license or certification has been lost; and that the employee be given a reasonable opportunity to demonstrate that the license or certification is still in effect, or assert any other relevant defense. Agency personnel offices should work closely with their labor relations representatives when these situations arise.

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