Due process considerations involving employees on leave of absence pursuant to CSL §71 as the result of a work related injury or disease or CSL §72 as the result of an injury or disease not related to employment
Allen v City of New York, 2014 NY Slip Op 08369, Appellate Division, First Department
The Appellate Division affirmed a Supreme Court's ruling that the City of New York violated Lionel Allen, then on workers' compensation leave pursuant to §71, when it terminated him from such leave.
Initially the City had terminated Allen pursuant to Civil Service Law §73, However, terminating an employee pursuant to Civil Service Law §73 is permitted only in the event the individual is on leave as the result of a disability resulting from non-occupational injuries or disease pursuant to §72 of the Civil Service Law.
The City then rescinded Allen's termination under color or §73 and terminated petitioner pursuant to Civil Service Law §71, which provides for leaves of absence in the event an employee suffers and injury or disease within the meaning of the Workers' Compensation Law. resulting from occupational injuries, retroactive to the original termination date.
The Appellate Division ruled that such action, taken without providing Allen any further opportunity to be heard, violated due process, rejecting the City's argument that the requirements for notice and opportunity to be heard are substantively identical with regard to the two sections and that Allen failed to make the requisite showing of mental and physical fitness for his position in response to the initial notice of intent to terminate him from his position.
In the words of the Appellate Division, “Even assuming that this is true, certain differences between the two provisions — including that 'section 71 affords greater procedural protections and opportunities for reinstatement (Matter of Allen v Howe , 84 NY2d 665, 673 )-— as well as practical differences in petitioner's position at the time he was notified pursuant to each section, dictate that the process provided failed to satisfy basic requirements of fairness.”
The court also rejected the City's argument that even if Allen's due process rights were violated, “the [Supreme] court should still have ordered a hearing to determine whether [Allen] was fit to return to duty on the originally designated date of termination,” explaining that doing so would have effectively nullified the Supreme Court's due process holding.
The Appellate Division than commented that “Having vacated [the City's] determination terminating [Allen's] employment [pursuant to §73], there is no basis for the medical examination, pursuant to Civil Service Law §71, for an employee seeking reinstatement after being 'separated from the service by reason of a disability.'"
Some additional elements to consider when determining the rights of employees place on §§71 or 72. leave.
In Duncan v NYS Developmental Center, 63 NY2d 128, the Court of Appeals held that the appointing authority, at its discretion, may terminate an employee on §71 leave after he or she has been absent for one year or longer [or two years or longer in the event the employee's §71 disability leave resulted from an assault sustained in the course of his or her employment].
§73 of the Civil Service Law applies in cases where the employee is absent because of an injury or disease not related to work for a consecutive period of one or more years pursuant to §72 of the Civil Service Law. In contrast, §71 of the Civil Service Law provides for absences resulting from job related injuries and diseases and the Court of Appeals has held that an employee who has been cumulatively absent on §71 leave for a period year or two years or more, as the case may be, depending on the rules of the civil service commission having jurisdiction*, may be terminated from his or her position pursuant to §71 itself.
Both §§71 and 73, however, set out post-termination procedures for the purpose of considering applications for reinstatement submitted by an employee terminated pursuant to §§71 and 72, respectively, within one year following the end of their disability.
* See, for example, 4 NYCRR 5.9, which provisions apply to employees of the State of New York as the employer in the classified service.
The Allen decision is posted on the Internet at: