Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71
Galuski v New York State Div. of Military & Nav. Affairs, 2016 NY Slip Op 00562, Appellate Division, Third Department
Ruth A. Galuski sustained a work-related back injury on November 29, 2011and was out of work from December 5, 2011 until January 3, 2012. During this time, the Division of Military and Naval Affairs [DMNA] paid her full wages, as she had accumulated enough leave credits to cover the entirety of her absence.
Galuski also applied for workers' compensation benefits, and a Workers' Compensation Law Judge (WCLJ) issued a decision that granted her application, awarded her compensation and directed DMNA's insurance carrier to reimburse DMNA for wages it had paid to Galuski during her injury-related lost time from work.
Although DMNA’s insurance carrier reimbursed DMNA within 10 days of the WCLJ's decision, DMNA failed to restore Galuski's accrued leave credits until February 2013.
Contending that DMNA’s restoration of Galuski’s leave credits was untimely within the meaning of Workers’ Compensation Law §25(3)(f), Galuski sought imposition of a penalty. After a hearing, the WCLJ declined to impose a penalty, and a panel of the Workers' Compensation Board upheld that decision. Galuski appealed.
The Appellate Division sustained the Board’s determination, explaining that the terms of the WCLJ's initial award provide for Galuski's direct compensation, which was paid in advance by DMNA when she received her full wages, as well as an express requirement that the carrier reimburse DMNA for the wages it had paid to claimant.
However, said the court, the award makes no mention of any obligation on DMNA’s part to timely restore Galuski's sick leave credits and as “restoration of leave time was not included in the terms of the award,” the Appellate Division concluded that the Board properly upheld the WCLJ's decision and declined to impose a penalty on DMNA.
It should be noted that certain Workers’ Compensation Leave benefits are provided to employees of the Division of Military and Naval Affairs in a negotiating unit covered by the collective bargaining agreement between the State and the Civil Service Employees Association, Inc., for the period April 2, 2011 to April 1, 2016. The relevant provision of this agreement, Article 11, Workers’ Compensation Benefits, is posted on the Internet at: http://www.goer.ny.gov/Labor_Relations/Contracts/Current/cseadmna/2011_16_DMNA_Contract.pdf
Employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, the rules for the Classified Service provide as follows with respect to Workers’ Compensation Leave applicable the employees in a collective bargaining unit:*
4 NYCRR 21.8 (d) provides for Workers’ Compensation Leave with pay as follows:
“(d.) (1) The appointing authority upon finding that the employee is in fact disabled from the performance of his duties, may grant the employee full pay during such leave not exceeding cumulatively six months. Such full pay may be granted irrespective of the employee's accrued credits under this Chapter.
“(2) Except when on full pay status under paragraph (1) of this subdivision, the employee may draw accrued vacation, overtime and sick leave credits, subject to the provisions of this Chapter pertaining thereto.
“(3) If not drawing full pay under paragraph (1) or paragraph (2) of this subdivision, an employee may, in the discretion of the appointing authority, be allowed to draw personal leave and sick leave at half pay for which he may be eligible under this Chapter.”
Further, with respect an employee’s use of his or her leave credits while on Workers’ Compensation Leave, 4 NYCRR 21.8(g) provides for the “Restoration of leave credits” as follows:
“(g) Leave credits, including sick leave at half pay, used by an employee during a period of absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid shall be restored to him in full; provided, however, that no restoration shall be made for any absence of less than a full day. Credits so restored may not again be used for future absences attributable to the same injury. In the event that the employee dies, resigns, retires or continues absent beyond one year without further leave, cash payment for vacation and overtime credits, including any credits restored under this subdivision, shall be made in accordance with the appropriate provisions of this Chapter. In any other case, an employee restored to service after absence on leave under this section shall have one year from the date of such restoration to reduce his accrued leave credits to the limits prescribed in this Chapter.”
Attendance Rules for officers and employees designated Managerial or Confidential within the meaning of Article 14 of the Civil Service Law [the Taylor Law] serving in New York State Departments and Institutions are set out in 4 NYCRR Parts 27 through 33.
* N.B. 4 NYCRR 26.3 provides in the event there a collective bargaining agreement between the State and an employee organization the provisions these rules and the rules set out in the collective bargaining agreement shall “shall both be applicable” except that in the event “the provisions of the agreement are different from the provisions of [these] attendance rules, the provisions of the agreement shall be controlling.”
The decision is posted on the Internet at: