More On Leaves of Absence Without Pay
Policy Bulletin #98-02
issued December 29, 1998 in this section on the topic "Leaves of
Absence Without Pay" attempted for the first time to bring together
all of the rules, regulations, and contractual language that provide
for mandatory leaves of absence. It also attempted to provide for the
first time some basic principles governing discretionary leaves of absence.
The following examples cover some common situations and address some
of the questions received since issuing Policy Bulletin #98-02. They
are intended to exemplify the basic principles and the application of
the criteria in the tables under "Summary of Mandatory Leaves of
Absence by Type of Appointment" contained in that Bulletin.
An important point about that material: if any situation is not covered
by one of the types of appointments, or if the employee being appointed
does not meet all the criteria under each column, any leave provided
can only be discretionary.
The final section of this bulletin contains some notes and additional
information not previously published elsewhere. These are also a result
of questions and comments since the publication of #98-02.
Note also that the scope of these policy bulletins is intentionally
limited. Only certain kinds of appointments are addressed, and we did
not address leaves under the Attendance rules, or leaves required by
federal legislation (i.e., FMLA).
This bulletin does not replace Policy Bulletin #98-02, nor does it
modify that information. See also Policy
Bulletin #94-04, Leaves of Absence, December 7, 1994, in this section,
which was the first issuance of a discussion of discretionary vs. non-discretionary
leaves. Please make a note on those two bulletins to also see this one.
These are examples and cannot be all inclusive. Discuss your specific
situations with your Staffing Services Representative.
Situation A -- A permanent competitive class management/confidential
employee is appointed to a non-competitive class position.
- The employee is not covered by contractual provisions, nor is there
any rule or law which requires she be given a leave of absence
- If the agency does not offer her a discretionary leave of absence
and she is terminated during her probationary period, she has no right
to return to her former competitive class position.
Situation B - A permanent competitive class employee
in agency X has been granted a discretionary leave. During this leave
the employee transfers (his competitive class hold "transfers")
to a different agency, Y.
- The original discretionary leave is canceled.
- The employee is on mandatory leave from his position in agency
X as a result of the required probation (if not waived).
- If agency Y wishes they may grant a new discretionary leave from
the position to which the employee transferred.
Situation C - A permanent competitive class employee
is given a discretionary leave from position C. During this leave the
employee is promoted or transferred from C to position D, within
the agency. [Note: this would also apply if
the employee received an OC list appointment.]
- The promotion or transfer does not start a new discretionary leave.
- The conditions of the original discretionary leave have been altered
(with the consent of the employee in that she accepted the promotion
or transfer) in that the employee is now on discretionary leave from
position D for the time remaining in her original two years.
- The employee is also on mandatory leave from position C for the
probationary period required by the promotion or transfer.
SITUATION D -- A permanent non-competitive class employee
is given a discretionary leave from position D. During this leave the
employee is appointed to a different non-competitive class position
E, within the agency.
- The appointment does not start a new discretionary leave.
The conditions of the original discretionary leave have been altered
(with the consent of the employee in that she accepted the appointment)
in that the employee is now on discretionary leave from position
E for the time remaining in her original two years.
Whether or not the employee is entitled to a mandatory leave from
D while serving probation in E depends on whether she is a CSEA
employee, on whether position E is at the same or a higher salary
grade, and whether E is in the same agency. See the criteria under
the table "Permanent Appointment to a Non-Competitive Class
Position" in Policy Bulletin 98-02.
Situation E - A permanent competitive class employee has
been granted a discretionary leave to serve in exempt class position
E within his agency. During this leave he is appointed to different
exempt class position, F, within the agency.
- The appointment does not start a new discretionary leave.
- The original conditions of the discretionary leave have not been
Situation F -- A permanent competitive class employee
has been granted a discretionary leave to serve in exempt class position
F within her agency. During this leave she is appointed on a temporary
basis (the only kind of appointment permitted) to a different position,
G, which is "temp pending Commission review" for placement
in the exempt class.
- Because position G is pending Commission review it is competitive
and since the employee is in the competitive class and the appointment
is temporary and within her agency Rule 4.10 applies requiring a mandatory
- The mandatory leave interrupts the discretionary leave, but does
not obviate it. Once the position is declared exempt the "clock
re-starts" but the end date of the two years has to be altered
to reflect the interruption. The employee does not get a new two years.
Situation G - A permanent competitive class employee in agency
X has been granted a discretionary leave to serve in an exempt class
position in agency Y. During this leave he is terminated and requests
to return to his position. However, agency X says 'No' and tells
the employee he may not return until the leave expires. On that date
the employee returns to his competitive class position. The employee
is immediately permanently appointed to non-competitive class position
- The agency incorrectly told the employee he could not return. Although
discretionary leaves are "contractual" in nature and their
conditions may be changed only by mutual consent, since the employee
was terminated he must be allowed to return before the date that was
originally agreed upon.
- In spite of the termination, the time spent out of pay status,
and the appointment to G (a different position in a different jurisdictional
class) this is not a new discretionary leave. If the agency wishes
to continue him on leave at the end of two years they must request
an extension from the Commission.
Situation H - A permanent competitive class employee in position
H (represented by CSEA) has her position reclassified to the non-competitive
class. The employee is appointed to the "pending non-competitive"
(actually competitive) position temporarily (the only status permitted)
until the Commission acts. There are no vacant positions in her former
- Rule 4.10 requires she be given a leave for the duration of the
- Since there is no position available in her former title, the reclassified
position is annotated as being her "hold item" for her former
title, jurisdictional class and status. (See Notes & Additional
- The employee has her name placed on the appropriate reemployment
list(s) for her former title, but is restricted to her agency.
Subsequently, the position is approved as non-competitive. Since the
employee was represented by CSEA in her former title she must be given
a leave of absence for the duration of her probationary period that
begins when she is permanently appointed. She completes this successfully
and at that time is granted a discretionary leave. (Again this is an
annotation made to document her former title, JC and status.) Prior
to the end of her two years of discretionary leave her current position
is once again reclassified, this time to the exempt class. Again the
employee is appointed temporarily to the "pending" position:
- Rule 4.10 only requires a leave of absence when a competitive employee
is appointed on a temporary basis to a competitive class position.
Therefore this latest appointment does not provide her with any right
to a mandatory leave. However, the agency must grant her a discretionary
leave to document her former title, status and jurisdictional class.
(See Notes & Additional Information below)
- Again the employee's name is placed on the appropriate reemployment
list(s). Note, however, that even if the non-competitive class position
was policy influencing, she would be entitled to reemployment list
status because of her former competitive class status.
- When the position is placed in the exempt class and the employee
is appointed permanently she has only whatever time is left of her
original two years before the agency must request an extension from
the CS Commission.
Notes and Additional Information
- The meaning of "usually" in Policy Bulletin
#98-02: In the introduction to this complex topic we made some
summary statements. Given that the topic of leaves of absence is addressed
several places in the civil service law and rules, as well as in other
related laws and the individually negotiated contracts (which are
not consistent), and further, that the current language is not always
as concise as it could be, words like "usually" and "generally"
are necessary when setting out the basic concepts that cover the majority
- Non-competitive positions:
- 55 b/c positions - the contracts and rules do not distinguish
among "regular" non-competitive and 55-b/c positions.
Therefore, these latter are included where ever the non-competitive
class is mentioned. Note however that it is the policy of the
state, as enumerated in Policy Bulletin #87-01 in 1805 (B) in
this manual, that where permanent 55-b/c appointees are given
subsequent appointments to other 55-b/c positions, such employees
must be given a leave of absence from their 55-b/c positions until
they have satisfactorily completed probationary service.
- policy influencing positions - Rule 4.5 does not distinguish
between "policy influencing" and "non-policy influencing"
positions so its provisions must be applied to both.
- Appointments to positions pending Commission review: When
a position is classified it is in the competitive class until the
Commission and Governor act to place it in another jurisdictional
class. (However, in the non-competitive and labor classes, the Commission
may designate that "all" positions in a title are in the
particular jurisdictional class, and, therefore when a new position
is classified it is immediately in that jurisdictional class. For
example, all positions of "Laborer" are in the labor class
without additional action by the Commission and the Governor.) After
the Commission acts the position is considered "pending non-competitive"
or "pending exempt," etc. 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,
may, if the position is in the same department or agency, fall under
the provisions of Rule 4.10 and be entitled to a leave of absence.
- Review of Vacant Exempt Class Positions: When an exempt class
position becomes vacant it is reviewed by the Commission. A permanent
competitive class or non-competitive class employee who may be appointed
on a temporary basis to this position during this period is not covered
by Rule 4.10 or negotiated agreements and therefore any leave granted
from their position must be discretionary. When the Commission approves
the continuation of the position in the exempt class, and the employee
is appointed permanently and serving a probationary period, this is
similarly not covered and the leave continues to be discretionary.
- Leaves for Probationers: There exists the myth that anytime
a permanent employee must serve a probationary period that he must
be given a leave of absence for the duration. In fact, whether the
leave is mandatory or discretionary depends on the specifics of the
employee's situation. Rule 4.5 (e) provides for leaves for the duration
of the probationary period for employees who are promoted or transferred.
This mandates leaves primarily for competitive class employees, but
includes those non-competitive class employees who are defined as
being promoted by section (a)(2) [Note: this
should be (b)(2)] of the same rule. Other employees
may or may not be covered by contractual provisions.
- Appointments vs. Reclassifications: Employees can accept
or refuse appointments. One of the factors which may affect their
decision is whether they are being given a leave. However, reclassifications
are involuntary, and even though no rule or contract may require a
leave, if the reclassification has impacted a permanent employee's
tenure or promotion rights and no position is available from which
to grant the employee a leave, the employee's reclassified position
must be annotated to indicate former title, status and jurisdictional
class for purposes identifying retention and promotion rights. In
NYSTEP this requires an "E" encumbent transaction which
must be entered by the Special Transactions Unit in Employment Records.
Agencies must provide this information by either e-mail or FAX to
Julie Dominion at Employment Records. The FAX number is 518-457-5497;
e-mail is firstname.lastname@example.org.
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