ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

August 30, 2016

Disability not a defense to charges of excessive absence from work


Disability not a defense to charges of excessive absence from work
New York City Office of Administrative Tribunals and Hearings Index No. 1410/16

New York City’s Department of Environmental Protection filed disciplinary charges against one of its employees, A.M., alleging that A.M. had been excessively absent since 2014. A.M., who had an absenteeism rate of over 50%, contended that as an individual “hired under the Civil Service Law §55-a Program” due to her diabetes,* §55-a “protected” her from such disciplinary charges and, in addition, presented numerous doctors’ notes to support her absences.

OATH Administrative Law Judge Kara J. Miller found that participation in a §55-a** program position was not a defense to excessive absenteeism and A.M.’s medical notes illustrated her habit of visiting different urgent care clinics every few days in order obtain doctor’s notes and avoid returning to work.

Judge Miller recommended termination of A.M. employment.

Excessive absenteeism as a basis for termination was an issue in Cicero v Triborough Bridge and Tunnel Authority, 264 AD2d 334.

The Authority terminated a toll collector, after finding him guilty of a number of charges including excessive absences. The Appellate Division rejected the toll collector’s argument that his absences were approved and medically justified and therefore excused for the purposes of maintaining any disciplinary action against him.

In Dickinson v New York State Unified Ct. Sys, 99 AD3d 569, the Appellate Division unanimously confirmed the termination of an employee found guilty of “certain disciplinary charges” that alleged both misconduct and incompetency due to excessive absenteeism and lateness. As to the penalty imposed, termination, the court said that it did not shock its sense of fairness as “[b]eing present at work is an essential job function” and an employee’s "disability ... may not be used to shield him [or her] from the adverse consequences of inadequate job performance."

* The Americans with Disabilities Act provides that the determination of whether impairment is a disability is to be made without regard to the ameliorative effects of mitigating measures; diabetes is deemed a disability even if insulin, medication, or diet controls a person's blood glucose levels. 

** §55-a of the Civil Service Law provides for the employment of persons with disabilities by municipalities in position in the competitive class having duties which can be performed by physically or mentally disabled persons who are found qualified to perform satisfactorily such duties. Upon such a determination, the position is jurisdictionally reclassified to non-competitive class.

The A.M. decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: n467fl@gmail.com