Friday, July 10, 2015

Placement on involuntary leave as the result of disability not work-related under color of Civil Service Law §72.5


Placement on involuntary leave as the result of disability not work-related under color of Civil Service Law §72.5
2015 NY Slip Op 05318, Appellate Division, Fourth Department

In August 2011, a firefighter [Firefighter] was removed from active duty because of an on-the-job hypoglycemic incident caused by his diabetes. Although Firefighter, his union, and the City's Fire Department subsequently engaged in negotiations regarding Firefighter's status, Firefighter was not formally notified that he had been placed on an immediate involuntary leave of absence pursuant to Civil Service Law §72.5 until April 2012.*

Firefighter challenged the decision. Ultimately a hearing officer determined that Firefighter had been properly placed on immediate involuntary leave, but additionally determined that he should be allowed to return to work and granted Firefighter some remedial relief.

In September 2013 the Fire Department Chief, reviewed the Hearing Officer's determination and decided that Firefighter should remain on involuntary leave, with no remedial relief. Firefighter appealed that determination to the County Department of Personnel, which affirmed the Fire Chief’s decision.

Firefighter filed a CPLR Article 78 petition in Supreme Court seeking to annul the determination that he was unfit for active duty as a firefighter because of his inability to manage his diabetic symptoms. Supreme Court transferred the matter to the Appellate Division pursuant to CPLR 7804 (g).

The Appellate Division agreed with Firefighter that the Fire Department did not strictly comply with the procedural requirements of the Civil Service Law, concluding that the procedural protections contained in Civil Service Law §72.1 apply to proceedings brought pursuant Civil Service Law §72.5 based on the language in §72.1 that the provisions of notice and hearing therein apply to employees "placed on leave of absence pursuant to this section" (emphasis in the opinion), "which includes Civil Service Law §72.5."

The court explained that these procedures are necessary "to afford tenured civil servant employees... procedural protections prior to involuntary separation from service," citing Sheeran v NYS Department of Transportation, 18 NY3d 61. The Appellate Division said that "[b]ecause of the significant due process implications of the statute, strict compliance with its procedures is required."**

Here it was undisputed that Fire Department did not strictly comply with the procedures set out in §72 for placing petitioner on immediate involuntary leave inasmuch as it was not until April 2012 that Firefighter was provided with "[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that [Firefighter was] not fit to perform the duties of" his position. Although the parties had engaged in negotiations during the period before the Fire Department provided Firefighter with written notice, the Department conceded that at no time did Firefighter waive his rights under section §72.

The absence of strict compliance with these procedural requirements renders Firefighter’s alleged leave a nullity prior to September 30, 2013, when the Fire Chief issued his final determination after reviewing the Hearing Officer's decision. Accordingly, said the Appellate Division Firefighter is entitled to back pay and the restoration of benefits from August 26, 2011 until September 30, 2013.

However, said the court, it concluded that the determination that Firefighter was unfit for active duty is supported by substantial evidence that Firefighter “was rendered unfit to serve as an active duty firefighter because of his inability to manage his diabetic symptoms.

However, the Appellate Division said that as the Fire Department had “violated lawful procedure after initially determining that [Firefighter] was unfit for active duty in August 2011,” it said that Firefighter was entitled to a hearing, should he request one, to determine his current fitness to be reinstated, provided that his application for reinstatement is made within one year of our decision herein”, explaining that while  Firefighter “is not within the one-year time period for seeking reinstatement … [Fire Department is] estopped from asserting that [Firefighter] is time-barred from seeking such relief because the delay was caused by [Fire Department’s] failure to comply with the procedures.”

* An individual unable to perform the duties of his or her position as the result of an occupational injury or disease is placed on Workers' Compensation Leave pursuant to Civil Service Law §71.

** Termination of an employee placed on leave pursuant to Civil Service Law §72 is effected pursuant to Civil Service Law §73 as a matter of the exercise of discretion by the appointing authority.

N.B. An employee terminated from a “§72” leave pursuant to Civil Service Law §73 “may, within one year after the termination of such disability, [emphasis supplied],  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” rather within one year of the effective date of the employee’s termination from a §72 leave pursuant to §73. The same is true with respect to an employee terminated from service while on §71 Workers' Compensation Leave.

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

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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