Placing an employee on an involuntary leave pursuant to Civil Service Law §72.5
OATH Index No. 2443/14
Following an investigation of several complaints of workplace violence involving an employee, Anonymous, the individual was referred to a psychiatrist for evaluation. The psychiatrist found that Anonymous presented a risk of danger in the workplace. The appointing authority placed Anonymous on involuntary leave pursuant to §72.5 of the Civil Service Law.
At the §72 disability hearing that followed, the appointing authority presented testimony from an investigator and both sides presented medical expert testimony.
OATH Administrative Law Judge Alessandra F. Zorgniotti found the opinion of Anonymous’s expert to be “conclusory” as he did not explain how Anonymous’s culture would cause him to be paranoid and aggressive with others.
Judge Zorgniotti recommended that Anonymous remain on involuntary leave pursuant to §72.5, finding that the appointing authority had properly placed Anonymous on pre-hearing involuntary leave based upon documented instances of threats, hostility and anger to co-workers, and the evaluation of an independent psychiatrist.
With respect the placement of an employee involuntarily on leave pursuant to Civil Service Law §72.5, the appointing authority is authorized to immediately place an individual on such an involuntary leave of absence in the event the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with agency operations.
§72 leave is leave without pay. However, an employee placed on a §72.5 involuntary leave of absence is entitled to use all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit in order to remain on the payroll. If the employee declines to use his or her accumulated leave credits in order to remain on the payroll, or having elected to remain on the payroll, exhausts his or her accumulated leave credits, he or she is placed in leave without pay status.
§72.5, in pertinent part, provides that if, after the hearing, the employee is determined not to be physically or mentally unfit to perform the duties of his or her position, “he or she shall be restored to his or her position and shall have any leave credits or salary that he or she may have lost because of such involuntary leave of absence restored to him or her".
The decision is posted on the Internet at:http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2443.pdf