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Monday, August 06, 2012

Limitations on the use of sick leave by police officers


Limitations on the use of sick leave by police officers
Economico v. Village of Pelham, 50 NY2d 120

Is it lawful to terminate a police officer on sick leave at full pay if he or she is unable to perform the duties of the position due to a non-work related injury or disease?

In contrast to the discontinuation of a police officer from the payroll while he or she is eligible for benefits pursuant to §207-c of the General Municipal Law,* a police officer placed on a leave of absence pursuant to §72 of the Civil Service Law because of an injury or disease that is not work-related may be terminated from his or her position pursuant to §73 of the Civil Service Law at the discretion of the appointing authority.

Notwithstanding a Taylor Law contract provision providing for “unlimited sick leave with pay” for police officers unable to work due to non-service related disabilities, the New York State Court of Appeals has held that a police officer so disabled could be terminated pursuant to §73 of the Civil Service Law. The Court distinguished Economico from the Yonkers teacher case (Board of Educ. v Yonkers Fedn. of Teachers, 40 NY2d 268) where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement.

The State’s interest in maintaining the efficiency and continuity of its civil service was held to be a substantial one and §73 truncates the employee’s right to be continued in his or her position without limitation, even in the face of a contract provision to the contrary, at the discretion by the appointing authority. It should be noted, however, that a police officer eligible for General Municipal Law §207-c benefits would be subject to the provisions of §71 of the Civil Service Law while a police officer absent due to an injury or disease that was not job-related is typically granted leave, with or without pay, pursuant to §72 of the Civil Service Law.

In Dolan v Whalen, 49 NY2d 991, the Court of Appeals held that a hearing in connection with termination pursuant to §73 is required if there is “some factual dispute impacting upon the employer’s right to discharge” the employee.**

Although §73 speaks of “termination,” such a termination is not a “dismissal” in a pejorative sense as the individual has certain rights to reinstatement to his or her former position, or a similar position, upon his or her recovery from the underlying disability or, if there is no suitable vacancy available at that time, the placement of his or her name on a preferred list. The same it true with respect to an individual who is terminated from his or her position while on leave pursuant to §71 of the Civil Service Law.

The police officer injured in the line of duty is entitled to unlimited leave with pay and other benefits pursuant to General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases or the individual retires or is retired, as provided by law. 

Further, the police officer cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptroller’s Opinion noted that “a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his [or her] disability.”

* An appointing authority may not summarily terminate an individual’s §207-c disability benefits [Kempkes v Downey, 53 AD3d 547].

** See Sheeran v New York State Dept. of Transp., 18 NY3d 61, a case addressing the rights of an individual who has voluntarily absented him or herself from work due to a non-work related injury of disease and seeks to return to his or her position.

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.

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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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