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
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,
* 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].