Monday, July 23, 2012

Employee entitled to go for a cancer-screening examination without loss of pay or charge to leave accruals


Employee entitled to go for a cancer-screening examination without loss of pay or charge to leave accruals
Moran v City of Saratoga Springs, et al, 21 Misc 3d 195

In Cruz et al v Wappingers CSD, Supreme Court, Dutchess County, Judge James V. Brand, Index #2197 /08 [not selected for publication in the Official Reports] a State Supreme Court ruled that Civil Service Law §159-b* requires employees to be paid for absences for cancer-screening examinations without charge to leave accruals and ordered the school district to restore sick leave accruals to three of its employees whom the district forced to use leave accruals in connection with absences for breast cancer screening.

In Moran, State Supreme Court Judge Thomas D. Nolan came to the same conclusion.

An City of Saratoga Springs employee took an hour off during the workday from her position in the City's accounts department to have a mammogram and reported this "leave of absence" on her weekly time report. The City's payroll department, however, advised Moran that she would not be paid for the one hour "leave", but if she wanted to be paid, she could charge the time against her accrued sick, personal or vacation leave.
The employee charged her absence to her leave accruals.

The Civil Service Employees Association Local 1000 (CSEA) asked the City restore those two hours to her accrued sick leave, stating that the §159-b leave was "to be paid leave" and that the City was in violation of the Civil Service Law when it required to charge her leave accruals or be deemed "on unpaid leave." The City refused to restore the employee’s leave credits to her and CSEA sued.

Judge Nolan said that the City's interpretation, though plausible, does not further the law's principal goal of encouraging public sector employees to be regularly screened for breast cancer. “Certainly,” said the court, “the screening leave was not intended to result in any financial detriment to the employee.” In addition, the court pointed out that the State's Civil Service Department's interpretation is that the statute provides for paid leave for New York State officers and employees with respect to the State as an employer.

Finding that the “legislative history” of §159-b is clear, the court concluded that the Legislature intended not only that annual cancer screening examinations would be excused and not be charged against any other leave, but also, that it would be a "paid" leave.**

In support of his conclusions, Judge Nolan cited two recent trial level court decisions – Cruz v Wappingers Cent. School Dist., [supra] and Fringuello v Wappingers Cent. School Dist., (Sup Ct, Dutchess County, July 15,2008, Dolan, J., index No. 2231/08, [Not selected for publication in the Official Reports].

Judge Nolan ruled that the City's determination to deny the employee paid leave of absence in connection with her absence for breast cancer screening "is arbitrary and capricious and cannot stand." Granting CSEA’s petition, the court order the City “to credit two hours to [the employee’s] sick leave accruals.

* §159-b.1, Excused leave to undertake a screening for breast cancer, provides, in pertinent part: “Every public officer, employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system….”

** The court's role in interpreting legislation was summarized in Matter of Monroe County Pub. School Dists. v Zyra (51 AD3d 125, 130

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