N.Y. Civil Service Law § 72: Leave for ordinary disability

§ 72. Leave for ordinary disability. 1. When in the judgment of an

appointing authority an employee is unable to perform the duties of such

employee's position by reason of a disability, other than a disability

resulting from occupational injury or disease as defined in the workers'

compensation law, the appointing authority may require such employee to

undergo a medical examination to be conducted by a medical officer

selected by the civil service department or municipal commission having

jurisdiction. Written notice of the facts providing the basis for the

judgment of the appointing authority that the employee is not fit to

perform the duties of such employee's position, and copies of any

written, electronic or other communication by the appointing authority

to a medical officer or any other entity regarding the claim that such

employee is unable to perform their duties pursuant to this section,

shall be provided to the employee, the authorized representative of such

employee and the civil service department or commission having

jurisdiction prior to the conduct of the medical examination. If, upon

such medical examination, such medical officer shall certify that such

employee is not physically or mentally fit to perform the duties of such

employee's position, the appointing authority shall notify such employee

that they may be placed on leave of absence. An employee placed on leave

of absence pursuant to this section shall be given a written statement

of the reasons therefor and complete copies of all of the documentation,

reports and records relied upon by the medical officer during their

examination, including any documents, reports and correspondence sent to

the appointing authority at the conclusion of the examination. Such

notice shall contain the reason for the proposed leave and the proposed

date on which such leave is to commence, shall be made in writing and

served in person or by first class, registered or certified mail, return

receipt requested, upon the employee. Such notice shall also inform the

employee of their rights under this procedure. An employee shall be

allowed ten working days from service of the notice to object to the

imposition of the proposed leave of absence and to request a hearing.

The request for such hearing shall be filed by the employee personally

or by first class, certified or registered mail, return receipt

requested. Upon receipt of such request, the appointing authority shall

supply to the employee, such employee's personal physician or authorized

representative, copies of all diagnoses, test results, observations and

other data supporting the certification, and imposition of the proposed

leave of absence shall be held in abeyance until a final determination

is made by the appointing authority as provided in this section. The

appointing authority will afford the employee a hearing within thirty

days of the date of a request by the employee to be held by an

independent hearing officer agreed to by the appointing authority and

the employee except that where the employer is a city of over one

million in population such hearing may be held by a hearing officer

employed by the office of administrative trials and hearings. If the

parties are unable to agree upon a hearing officer, such hearing officer

shall be selected by lot from a list of persons maintained by the state

department of civil service. The hearing officer shall not be an

employee of the same appointing authority as the employee alleged to be

disabled. The hearing officer shall be vested with all of the powers of

the appointing authority, and shall make a record of the hearing which

shall, with such hearing officer's recommendation, be referred to the

appointing authority for review and decision and which shall be provided

to the affected employee free of charge. A copy of the transcript of the

hearing shall, upon request of the employee affected, be transmitted to

such employee without charge. The employee may be represented at any

hearing by counsel or a representative of a certified or recognized

employee organization and may present medical experts and other

witnesses or evidence. The employee shall be entitled to a reasonable

period of time to obtain such representation. The burden of proving

mental or physical unfitness shall be upon the person alleging it.

Compliance with technical rules of evidence shall not be required. The

appointing authority will render a final determination within ten

working days of the date of receipt of the hearing officer's report and

recommendation. The appointing authority may either uphold the original

proposed notice of leave of absence, withdraw such notice or modify the

notice as appropriate. In any event, a final determination of an

employee's contest of a notice of leave shall be rendered within

seventy-five days of the receipt of the request for review. An employee

on such leave of absence shall be entitled to draw all accumulated,

unused sick leave, vacation, overtime and other time allowances standing

to such employee's credit. The appointing authority in the final

determination shall notify the employee of such employee's right to

appeal from such determination to the civil service commission having

jurisdiction in accordance with subdivision three of this section.

2. An employee placed on leave pursuant to subdivision one of this

section may, within one year after the date of commencement of such

leave of absence, or thereafter at any time until his or her employment

status is terminated, make application to the civil service department

or municipal commission having jurisdiction over the position from which

such employee is on leave, for a medical examination by a medical

officer selected for that purpose by such department or commission. If,

upon such medical examination, such medical officer shall certify that

such employee is physically and mentally fit to perform the duties of

his or her position, he or she shall be reinstated to his or her

position.

3. An employee who is certified as not physically or mentally fit to

perform the duties of his or her position and who is placed on leave of

absence pursuant to subdivision one of this section, or who is denied

reinstatement after examination pursuant to subdivision two of this

section, may appeal from such determination to the state or municipal

civil service commission having jurisdiction over his or her position.

Such employee and appointing officer or their representatives shall be

afforded an opportunity to present facts and arguments in support of

their positions including medical evidence at a time and place and in

such manner as may be prescribed by the commission. Provided however,

that in considering appeals pursuant to subdivision two of this section

where a hearing has not been held within nine months from the date of

notification pursuant to subdivision one of this section, the commission

shall designate an independent hearing officer who shall hold a hearing

and report thereon. The commission shall make its determination on the

basis of the medical records and such facts and arguments as are

presented to it. The final determination of the commission shall be

binding on both the employee and the appointing authority; provided,

however, that an employee or appointing authority may seek review of a

final determination of a commission in accordance with the provisions of

article seventy-eight of the civil practice law and rules.

4. If an employee placed on leave pursuant to this section is not

reinstated within one year after the date of commencement of such leave,

his or her employment status may be terminated in accordance with the

provisions of section seventy-three of this article.

5. Notwithstanding any other provisions of this section, if the

appointing authority determines that there is probable cause to believe

that the continued presence of the employee on the job represents a

potential danger to persons or property or would severely interfere with

operations, it may place such employee on involuntary leave of absence

immediately; provided, however, that the employee shall be entitled to

draw all accumulated unused sick leave, vacation, overtime and other

time allowances standing to his or her credit. If such an employee is

finally determined not to be physically or mentally unfit to perform the

duties of his or her position, he or she shall be restored to his or her

position and shall have any leave credits or salary that he or she may

have lost because of such involuntary leave of absence restored to him

or her less any compensation he or she may have earned in other

employment or occupation and any unemployment benefits he or she may

have received during such period.