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November 18, 2011

Procedural safeguards set out in Civil Service Law §72 available to employee if employer bars his or her return to work from sick leave

Procedural safeguards set out in Civil Service Law §72 available to employee if employer bars his or her return to work from sick leave
Matter of Sheeran v New York State Dept.of Transp., 2011 NY Slip Op 08229, Court of Appeals [Decided with Birnbaum v NYS Department of Labor]

In both the Sheeran and Birnbaum appeals the issue was whether Civil Service Law §72, which provides certain procedural safeguards to a public employee to be placed on an involuntary leave of absence due to illness or a disability by the appointing authority, applies to an employee who is prevented from returning to work by the appointing authority from his or her voluntary absence on sick leave. The Court of Appeals, reversing the Appellate Division's rulings to the contrary,* said that it does.

Both Thomas Sheeran and Michelle Birnbaum had placed themselves on sick leave due to illness voluntarily. Subsequently they attempted to return to work and submitted certificates from their physician indicating that they were able to return to duty.

However, their respective employers, the NYS Department of Transportation [DOT] and the NYS Department of Labor [DOL], under color of 4 NYCRR 21.3 (e) elected to have the employees examined by a State-affiliated physician prior to their returning to work. In each case, the physicians found the employees unfit to return to duty and the respective departments placed Sheeran and Birnbaum on “involuntary leave.”

When these individuals asked for a hearing pursuant to Civil Service Law §72 the respective departments rejected their requests, contending that §72 “only applied to employees being removed from the work site” by the appointing authority.**

Ultimate both Sheeran and Birnbaum were terminated from their positions pursuant to Civil Service Law §73. §73 permits, but does not require, an appointing authority to terminate an employee continuously absent from work on §72 leave for one year or more and unable to perform the duties of the position.***

Sheeran and Birnbaum sued, arguing that their placement on involuntary leave without having been provided a hearing pursuant to Civil Service Law §72 was unlawful.

The Appellate Division, concluding that §72, “by its plain language, applies only to employees placed on involuntary leave, whereas the CBA [collective bargaining agreement] and 11 NYCRR 21.3 apply to employees who have taken voluntary leave,” ruled that the determinations of the DOT and DOL to place their respective employees on an involuntary leaves of absence without first providing them with a §72 hearing was "not arbitrary, capricious, irrational or contrary to law."

The Court of Appeals, however, said that it found “no indication that the Legislature intended to make a distinction between an employee who is placed on involuntary sick leave from the job site and one that is placed on such leave from a voluntary absence.” In the words of the court §72 “simply provides that an employee ‘placed on leave of absence’ is entitled to its procedural protections.”

In addition, the court noted that §72.5 permits a public employer “to immediately place the employee on involuntary leave when the employee poses potential danger to the work site, applies equally whether the employee is actively working or about to return [emphasis supplied].”

While DOT and DOL argued that “Rule 21.3 (e) and Article 30 of the [controlling] CBA as applying to the [employee’s] circumstances,” the Court of Appeals pointed out that neither of those provisions affords an immediate opportunity to be heard once a determination is made to place the employee in an involuntary leave status. The court explained that although these provisions provided an opportunity to be reexamined at a later date, they did not provide the procedural protections mandated by §72.

Essentially the court said that unlike the situation in Antinore [Antinore v State, 40 NY2d 6] where the Court of Appeals held that a union could bargain away the employee’s statutory disciplinary rights set out in §75 of the Civil Service Law in favor of an alternative disciplinary procedure if the alternate procedure provided constitutional due process protections equivalent to those available under the statute it replaced, a collective bargaining agreement may not defeat an individual's statutory rights as was the case in City of Plattsburgh v Local 788, 108 AD2d 1045.

In Plattsburgh the collective bargaining agreement measured seniority for the purposes of layoff in terms of "initial date of appointment" rather than seniority for the purposes of layoff measured from the initial date of permanent appointment as mandated by §§80 and 80-a of the Civil Service Law. .

The court said that the legislative history of §72 indicates the statute has a remedial purpose -- “to afford tenured civil servant employees with procedural protections prior to involuntary separation from service.” This remedial purpose, said the court, “applies equally here, where an employee is out on sick leave and then seeks to return to work, but is prohibited based on a finding that he or she is unfit.” Accordingly, the court concluded that a collective bargaining agreement could not defeat this right to a hearing prior to his or her separation from service except as authorized by §72.5 of the Civil Service Law.

Further, said the court, “To read the statute otherwise would discourage employees from taking voluntary leave, since they would have greater rights if they remained on the job and waited to be involuntarily removed—a result the Legislature surely did not intend.”****

* see Matter of Sheeran v New York State Dept. of Transp., 68 AD3d 1199 and Matter of Birnbaum v New York State Dept. of Labor, 75 AD3d 707

** DOT and DOL both claimed that 4 NYCRR 21.3 and Article 30 of the relevant collective bargaining agreements between the union and the employers in support of their decisions.

*** CSL §73 permits a public employer to terminate an employee who has been continuously absent from work for one year or longer and unable to perform the duties of the position. The individual, however, is eligible for reinstatement to his or her position if he or she applies for reemployment within one year after the underlying disability no longer prevents his or her performing his or her duties satisfactorily.

**** Judge Smith dissented and voted to affirm the Appellate Division’s ruling in an opinion.


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New York Public Personnel Law Blog Editor 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 members of the NYPPL staff 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.
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