Returning to work following a voluntary absence due to illness or disability

Returning to work following a voluntary absence due to illness or disability

Source: New York State Department Of Civil Service, State Personnel Management Manual, Advisory Memorandum #14-01 dated January 22, 2014

Mark F. Worden, Associate Attorney, New York State Department of Civil Service, has distributed a memorandum, Advisory Memorandum #14-01, addressing “Return to Work Evaluations and Civil Service Law Section 72 Due Process Procedures.”

Mr. Worden explains that the New York State Court of Appeals decided two cases, Sheeran v. New York State Department of Transportation* and Birnbaum v. New York State Department of Labor (18 NY3d 61) in which it ruled that the procedural safeguards set out in Civil Service Law (CSL) §72 apply when an employee who is voluntarily on leave due to personal illness or a disability that is not work-related within the meaning of the Workers’ Compensation Law is prevented from returning to work by the appointing authority. Such a refusal to allow the employee to return to work converts his or her  voluntary leave into an involuntary leave. Accordingly, the appointing authority is then required to follow the procedures set out in CSL §72.1 or CSL §72.5, as the case may be, with respect to such an employee..

N.B. The Memorandum cautions that "It is essential that any employee denied a return to duty pending a hearing be provided with written notice that such action is being taken pursuant to CSL §72(5) and notified of the reasons for such action."

Mr. Worden also advises that “… all appointing authorities must review their return to work procedures to ensure that they are consistent with these Court of Appeals decisions” and follow the guidelines set out in Advisory Memorandum #14-01**

Although Mr. Worden’s memorandum is addressed to State Department and Agency “Personnel and Human Resources Directors,” and Sheeran and Birnbaum were employed by State Departments at the time they voluntarily placed themselves on leave, it is instructive to appointing authorities of political subdivisions of the State as well.

* NYPPL’s summary of the Sheeran and Birnbaum decisions is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/2011/11/procedural-safeguards-set-out-in-civil.html

** Mr. Worden’s  memorandum Advisory Memorandum # 14-01 is posted on the Internet at: http://www.cs.ny.gov/ssd/Manuals/SPMM/2200SeparationsLeaves/Advisory%20Memo%2014-01.htm

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