Placing an employee on an involuntary leave of absence pursuant to Civil Service Law §72.5
2014 NY Slip Op 08273, Appellate Division, Third Department
In the words of the Appellate Division, “The rationale for providing [Anonymous] with a post-termination hearing is to afford him a final opportunity to present proof demonstrating how his mental condition changed, if at all, and whether he is able to perform his job duties as of the date of his termination. To deny Anonymous' request for a post-termination hearing was constitutionally infirm and, therefore, remittal of this matter is necessary for the completion of such administrative proceedings,” citing House v New York State Off. of Mental Health, 262 AD2d 929.
* Although the phrase used in the decision is "be discharged from his position," such termination is not a pejorative dismissal as §73, in pertinent part, specifically provides that an individual terminated from a §72 leave “may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.” §73 further provides that “If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his former position, he shall be reinstated to his former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field in his former department or agency. If no appropriate vacancy shall exist to which such reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed on a preferred list for his former position in his former department or agency, and he shall be eligible for reinstatement in his former department or agency from such preferred list for a period of four years.”
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