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Wednesday, December 16, 2009

Processing terminations from Civil Service Law §71 Workers’ Compensation Leave

Processing terminations from Civil Service Law §71 Workers’ Compensation Leave
Adapted from New York State Department of Civil Service's Advisory Memorandum #09-04

Section 5.9 of 4 NYCRR (Rules for the Classified Service), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service,* requires that appointing authorities provide at least 30 days notice of a proposed termination to employees facing termination pursuant to §71 of the Civil Service Law.**

Many local civil service commissions and personnel officers have adopted similar rules that apply to public employees subject to their respective jurisdictions.

The New York State Department of Civil Service has issued an advisory memorandum that supplements its Policy Bulletin 93-02, §2200, Separations and Leaves, and includes a new "Sample Notice Of Pending Termination" [see below].

The advisory indicates that "4 NYCRR 5.9(c) requires that termination from service shall not be effective until 30 days from service upon the employee of a notice of impending termination containing a proposed effective date for termination. This section does not require a new notice after a short-lived return to work as long as the employee is initially notified how the effective termination date is determined if the employee is again absent and exhausts all leave within 30 days of restoration to service."

If restored to duty, the employee is to be informed of any remaining worker’s compensation leave and if he or she returns to workers’ compensation leave for the same occupational injury or disease within 30 days of his or her restoration to duty, he or she may be immediately terminated without further notice when his or her cumulative year of leave has been exhausted.

Sample Notice of Pending Termination
(to be sent at least 30 and no more than 60 days prior to the proposed termination date)


Pursuant to §71 of the New York State Civil Service Law and §5.9 of the Rules for the Classified Service, your workers’ compensation leave will end, and your employment will terminate on [DATE] due to ___[REASON: E.G. FINDING OF PERMANENT DISABILITY/COMPLETION OF ONE CUMULATIVE YEAR OF LEAVE/ETC.]___.*

You have the right to apply to this office prior to that date for restoration to duty if you are medically fit to perform the duties of your position. If you apply, you may be required to submit to a medical examination to determine your fitness. If the examining physician finds that you are not fit, you will have the right to a hearing to contest that finding, pursuant to Subdivision (d) of §5.9 of the Rules for the Classified Service. If you are found fit for duty by this agency, your leave will be terminated and you will be scheduled to return to work. If restored to duty, you will be informed of any remaining worker’s compensation leave and if you return to workers’ compensation leave for the same occupational injury or disease WITHIN 30 DAYS OF RESTORATION, you may be immediately terminated without further notice when your cumulative year of leave has been exhausted.

As required by the Americans with Disabilities Act (ADA) and the New York State Human Rights Law (HRL) it is the policy of this agency to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee who has a disability. If you are an individual with a disability as defined by the ADA or HRL you may be entitled to an accommodation to enable you to perform the essential duties of your position. If you believe you would be able to perform the duties of your position with a reasonable accommodation, please contact this office for an application for requesting such an accommodation or for further information about the ADA or HRL.

You may wish to contact the Employees’ Retirement System to determine your eligibility for various retirement benefits, including accidental disability retirement. You should do so as soon as possible in order to avoid possible ineligibility due to lateness. You may contact the Retirement System at 1-866-805-0990 or 518-474-7736 (in the Albany area), or by writing to: The New York State Employees’ Retirement System, 110 State Street, Albany, NY 12236.

If you have questions regarding this letter, please contact this office at:


Very truly yours,

Title, etc.


* Many local civil service commissions have adopted a similar rule.

** §71 of the Civil Service Law provides, in pertinent part, that “Where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen's compensation law, he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position” [emphasis supplied].

Monday, November 30, 2009

Claim alleging “detrimental reliance” on agreement with employer underlying tendering employee’s resignation dismissed

Claim alleging “detrimental reliance” on agreement with employer underlying tendering employee’s resignation dismissed
Boakye-Yiadom v Roosevelt Union Free School Dist., 2007 NY Slip Op 52657(U), decided on April 18, 2007, Supreme Court, Nassau County, Justice Daniel Palmieri

Kwame Boakye-Yiadom, the former Assistant Superintendent for Business for the Roosevelt Union Free School District ("District"), sued the District alleging breach of contract and "detrimental reliance" in tendering his resignation. Boakye-Yiadom also alleged that the District defamed him.

As to Boakye-Yiadom’s claim for breach of contract, he contended that he was entitled to payment for unused vacation and sick leave credits. His defamation claim alleged that the District's Superintendent, Ronald O. Ross, accused him of having embezzled District funds, constituting “slander per se.”

Boakye-Yiadom’s employment contract with the District, in relevant part, provided that vacation time would be earned at a stated rate, but that “Vacation days have NO cash value and may NOT be carried over into subsequent school years.” As to Boakye-Yiadom claims regarding sick leave, the employment contract, in relevant part, provided that payment for unused sick time may be made only to those individuals who "have at least 20 years of service with the district." Boakye-Yiadom did not claim he had at least “20 years of service” with the district and Justice Palmieri noted Boakye-Yiadom’s employment contract began in 2001, some five years before the events that led to this law suit.

In addition, Boakye-Yiadom claimed that he and Ross “entered into an agreement” that he would resign his position with the District, contingent upon payment of certain sums for unused vacation and sick days. However, in response to a letter Boakye-Yiadom sent to Ross “memorializing the alleged verbal agreement,” Ross stated that the School Board had accepted his resignation and agreed to the payment of accumulated sick and vacation days "to the extent such payments are approved by the State Education Department, as required by law."

The Department of Education did not approve the severance payment to which the Board had agreed and Ross was advised that authorization to pay the severance to the Boakye-Yiadom was denied.

Justice Palmieri said that this was a sufficient basis for dismissal of Boakye-Yiadom claims regarding the alleged breach of contract.

As to Boakye-Yiadom claim “sounding in defamation,” Justice Palmieri said that the claim “must be dismissed for failure to state a cause of action.” While Boakye-Yiadom’s petition alleges that Ross falsely accused him "to others" of embezzling $2.5 million, it did not name “the person or persons to whom the words were uttered, nor the time, place and manner of this statement, rendering the cause of action fatally deficient under CPLR 3016(a).”


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