Recalling firefighters on General Municipal Law Section 207-a disability leave to report for light duty

Recalling firefighters on General Municipal Law Section 207-a disability leave to report for light duty
Cohoes v Local 2562, IAFF, Court of Appeals, 94 NY2d 686
Barnes v Council 82 [Monroe], Court of Appeals, 94 NY2d 719

What is the proper procedure for a municipal employer to a call disabled firefighter or police officer back to work for a light duty assignment? The Cohoes and Monroe cases offer some of the clearest judicial views on the administrative processing of GML Section 207-a/207-c matters involving light duty.

The Cohoes case

In this appeal, the Appellate Division considered the authority of a municipality to direct a firefighter receiving Section 207-a benefits to report for light-duty assignments.

Disagreeing with some of the rulings made by a state Supreme Court justice, the Appellate Division set out a number of guidelines for recalling an individual to perform light-duty. The Court of Appeals affirmed the Appellate Division’s ruling.

The decisions offer guidance on suspension of General Municipal Law Section 207-a benefits should the individual fail to report for duty, and explains when due process is required. The court set out the following guidelines:

1. The municipality must have the firefighter examined by the municipality’s physician to determine the individual’s fitness.

2. If the report indicates that the firefighter is fit to return to light-duty, he or she may be directed to report for appropriate assignment. Unless a Taylor Law agreement requires some administrative hearing, administrative due process does not require that the municipality hold a hearing prior to its issuing its return to work order.

3. If the firefighter contests the municipality’s directive to report for light-duty, he or she must submit documentation regarding his or her alleged medical inability to perform light-duty tasks.

4. If such documentation is submitted, the municipality is required to conduct an “evidentiary hearing” before it may take any action to modify the Section 207-a benefits being provided to the firefighter.

5. If the firefighter fails to submit medical evidence that he or she is unable to perform light-duty, he or she is entitled to a hearing before a final termination of Section 207-a benefits is imposed. However, the municipality is authorized to immediately withhold payroll checks because the firefighter failed to report to work as he or she did not provide the necessary “contrary medical documentation” required.

The Appellate Division also said that a disabled firefighter who objects to his or her recall for light-duty and submits the required medical documentation may not be required to charge his or her continued absence to accrued leave credits pending a final determination of their case.

Significantly, the court said the rights of individuals who provided “contrary medical documentation” are different from those of individuals who did not submit such documentation.

For instance, individuals who fail to submit such documentation may have their Section 207-a benefits discontinued immediately and must charge their continued absence to their leave credits, it any, if they wish to remain on the payroll.

But the municipality may not require the individuals who provided the required medical documentation to charge their absence to their leave credits in order to remain on the payroll, the court said. It ruled that such action would be improper because the municipality controls the time frame to be followed in completing the required administrative process.

Another issue involved the union’s demand that recall directives be submitted to arbitration. The Appellate Division observed that Section 207-a “does not dictate the procedures to be followed when a firefighter requests a due process hearing to challenge a municipality’s medical opinion.”

While there is no public policy impediment to the arbitration of light-duty disputes where the parties have so agreed, it is not available in instances where there is no such agreement between the parties in place, said the court.

The decision notes that the Taylor Law contract between the parties in the Cohoes case did not specifically provide for the arbitration of any challenge to the City’s directing disabled firefighters to report for light-duty.

Accordingly, said the court, “with no reference to light-duty assignments and no procedure described for contesting [such determinations], petitioners’ dispute does not fall within the terms or conditions of employment encompassed by the broad definition of grievances in the parties’ contract.”*

Do the rules outlined above also pertain to cases in which a municipality orders a firefighter to report for full duty? And do these apply to cases under GML Section 207-c, a parallel law that covers police officers? The court did not address those questions, but presumably the same procedures and guidelines would apply in such cases as well.


The Monroe case

The Monroe case suggests that municipalities do not have to submit disputes involving light duty to contract arbitration unless the contract specifically provides for arbitration of such disputes.

David Monroe worked for the Schenectady County Sheriff’s Department from 1985 to July 15, 1994 when he was terminated as a correction lieutenant for cause. In lieu of pursuing arbitration over his termination, Monroe agreed accepted a demotion and was reinstated to the position of correction officer.

Monroe returned to work on January 17, 1995 as a correction officer but departed within an hour, complaining of an inability to work due to stress and anxiety. On February 7, 1995, Monroe filed an application for, and ultimately won an arbitration award providing full disability benefits pursuant to General Municipal Law Section 207-c.

On January 18, 1997 and March 19, 1998, Monroe was examined by Steven Rappaport, a psychiatrist, who concluded that Monroe was capable of performing light-duty work for four to six weeks and could then return to full duty.

Monroe resisted an order to report for light-duty and “submitted unsigned reports by his own physicians opining that he was not fit to return to work for the Sheriff’s Department.”

The county told Monroe and his union that Monroe’s dispute over the return to work order was governed by Article XI of the county’s procedures. Under that provision, a step three grievance must be filed within 10 days of the employee’s receipt of a back-to-work order. But no grievance was ever filed.

Instead, a notice of arbitration on Monroe’s behalf was filed by the union “pursuant to Article 16 of the collective bargaining agreement between the parties ... and the [county’s] revised Article VI light duty assignments ... 207-c procedure”.

The county obtained a stay of arbitration and Council 82 appealed. The Appellate Division upheld the lower court’s granting the county’s motion to stay the arbitration, holding that:

1. General Municipal Law Section 207-c (3), directing that certain action be taken by the employer, leaves no room for negotiation and, thus, removes the issue from the scope of the Taylor Law. Under the clear language of the statute, an officer is entitled to salary and benefits only if he performs the light-duty assignment.

2. The county’s Article XI properly set out a step three grievance to challenge any determination on light duty. Due process is provided because any decision is subject to review under Article 16.3 of the collective bargaining agreement and allows submission of the step three grievance to arbitration before the Public Employment Review Board.

3. The Section 207-c procedure allows an employee to dispute any specific tasks assigned to him pursuant to a light-duty assignment.

The Court of Appeals affirmed the Appellate Division’s ruling.

These administrative procedures belied the union’s claim that an employee would not have meaningful review of the determination of his eligibility for light duty if he or she is not allowed to demand arbitration pursuant to the collective bargaining agreement.

Also the Appellate Division noted that the Court of Appeals has specifically held that General Municipal Law Section 207-c gives the municipality authority to order officers to light duty and such authority is not “subject to mandatory bargaining,” citing Schenectady Police Benevolent Assn. v New York State Public. Employment. Relations Board, 85 NY2d 480).

The court concluded that it is clear that, in any event, the matter is not arbitrable under the agreement between the parties as a reading of the collective bargaining agreement indicates that the county did not agree to the referral of such disputes to arbitration.

* The April 1, 1999 decisions by the Court of Appeals in the Watertown and Indian River School District cases [93 N.Y.2d 132] address the possibility of arbitration even if it is not specifically provided for in the collective bargaining agreement.

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