LOSS OR SUSPENSION OF NECESSARY LICENSE OR
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
- there has been a loss or suspension of license or certification
- 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
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
- 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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