Employer required to consider providing a reasonable accommodation after employee placed on workers’ compensation leave
2015 NY Slip Op 05147, Appellate Division, Second Department
An employee [Employee] was injured on the job and as a result of her injury she was unable to work and was placed on leave of absence without pay pursuant to Civil Service Law §71, Workers’ Compensation Leave.*
About a year after being placed on leave pursuant to §71, the appointing authority sent Employee “a notice of proposed termination” of her employment** pursuant to Civil Service Law §71. Employee challenged the proposed termination and sought reinstatement prior to the effective date of her termination.
The appointing authority [Agency] denied Employee’s request, without ordering a new independent medical examination, on the grounds that the Employee  had failed to demonstrate that she was medically fit to return to work and  had failed to provide the appointing authority with a date by which she would be able to return to full duty. Ultimately Employee was terminated.
In an action to recover damages for unlawful discrimination in employment on the basis of disability and retaliation in violation of Executive Law §296, Employee appealed so much of an order of the Supreme Court dismissing her first cause of action in which she had alleged discrimination in employment on the basis of disability.
The Appellate Division reversed the Supreme Court’s granting the Agency motion for summary judgment dismissing Employee’s first cause of action in which she alleged unlawful discrimination in employment on the basis of disability, holding that the motion should have been denied.
Civil Service Law §71, Workers’ Compensation Leave, provides that an individual injured on the job and unable to perform the duties of his or her position is entitle to at least one year of leave without pay unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.
Employee commenced this action, contending that the Agency discriminated against her because of her disability by failing to provide a reasonable accommodation in the form of light duty or additional time for recovery.
In the words of the Appellate Division, "The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested," explaining that:
1. An employer normally cannot obtain summary judgment on a disability discrimination claim pursuant to Executive Law §296 "unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation; and
2. An employer cannot present such a record "if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request.
Viewing the evidence in the light most favorable to Employee, the Appellate Division found that the Employee’s responses to the notice of proposed termination could reasonably have been understood as a request for accommodation which Agency rejected by terminating the Employee’s employment based on her inability to return to work within the one year permitted under Civil Service Law § 71.
The Appellate Division concluded that Agency failed to establish, prima facie, that it had engaged in a good faith interactive process that assessed the needs of Employee and the reasonableness of her requested
* §71 permits an employee to use any and all available leave credits until exhausted in order to remain on the payroll while on Workers’ Compensation Leave.
** §71 provides for the reinstatement of the employee after separation for disability if the individual applies for such reinstatement within one year of the termination of his or her disability [Duncan v NYS Developmental Center, 63 NY2d 128].
The decision is posted on the Internet at:
Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html