New York Public Personnel Law: Termination for disability pursuant to §73 of the Civil Service Law.

August 18, 2011

Termination for disability pursuant to §73 of the Civil Service Law.

Termination for disability pursuant to §73 of the Civil Service Law.

Dep’t of Education v. L.C. (in PDF), OATH Index No. 1956/11

The New York City Department of Education sought dismissal of a clerical associate for “willful misconduct” pursuant to §75 of the Civil Service Law based upon her long-term absence without leave.

In the alternative, the Department sought to remove the employee from service pursuant to §73 of the Civil Service Law because she was absent for more than one year due to a non-work related disability.

The record established that the employee had been undergoing treatment for breast cancer.

Under the circumstances, OATH Administrative Law Judge Ingrid M. Addison found that the Department failed to prove that its employee’s absence was willful.

However, Judge Addison found that there was substantial cause to terminate the employee because her illness rendered her unfit to perform her obligations to her employer for more than one year.

N.B. In contrast to termination pursuant to Civil Service Law §75, termination pursuant to Civil Service Law §73 is not a “pejorative dismissal” and the individual may apply for reinstatement to his or her former position within one year of the abatement of his or her disability.

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.