New York State Department of Civil Service - Policy Bulletin #16-01

New York State Department of Civil Service - Policy Bulletin #16-01

Separations and Leaves

N.B. The Rules of the New York State Civil Service Commission and the Regulations of the President of the Civil Service Commission, except as otherwise specified in any particular rule, apply to positions and employments in the classified service of the State of New York as the employer and positions and employments in the classified service of public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions and county personnel officers have adopted similar provisions addressing separations and leaves of employees in the classified service of such jurisdictions.

Leaves of Absence Without Pay

THIS POLICY BULLETIN REPLACES POLICY BULLETIN #98-02, issued December 29, 1998.

This policy bulletin is intended to be a guide to agencies on the topic of leaves of absence without pay.

Leaves of Absence Generally

The purpose of any leave of absence without pay is to provide employees with their appropriate tenure protection, promotion rights, and layoff rights based upon the employee's status in that position. Employees may not have multiple simultaneous leaves from the same item/position. However, to completely preserve their rights, employees may be on leave from different positions in the same title, in the same or different jurisdictional classes.

Some types of leaves are termed "mandatory." Other leaves are termed "discretionary."

Mandatory leaves must be granted as required by Civil Service Law or rule or negotiated agreement, or Federal law, or State policy.

Discretionary leaves may be granted in accordance with the provisions set out in 4 NYCRR 5.2.

Usually a mandatory leave is granted when a permanent employee:

1. Is promoted or transferred to a position in which the employee must serve a probationary period:

   (a) In the competitive class is appointed in contingent permanent, temporary or provisional status to a position in the employee's agency.

   (b) In the non-competitive or labor class is appointed in contingent permanent status to a position in the employee's agency.

2. Is absent for a reason specified in the Family & Medical Leave Act.

3. Is absent for reasons specified in the Military Law. [An employee ordered to military service may be entitled to Military Leave with Pay for limited periods.] 

4, Is unable to perform the duties of the employee's position due to disability. [See Civil Service  Law §71, Workers' Compensation Leave and Civil Service Law §§72 and 73, Leave for ordinary disability. Such leaves are without pay although the employee may use accrued leave credits in order to remain of the payroll until such leave credits are exhausted.]

When an employee must be granted a leave in a situation governed both by a Civil Service Law, or rule and a negotiated agreement, and the identified limitations or length of leave required are different, the employee must be given the leave terms which provide the employee with the most protection,

[N.B. 4 NYCRR 26.3, "Rules applicable to employees in negotiating units," provides that "The provisions of these attendance rules, insofar as they apply to employees in the negotiating units established pursuant to Article 14 of the Civil Service Law [the Taylor Law], shall be continued; provided, however, that during periods of time when there is in effect an agreement between the State and an employee organization reached pursuant to the provisions of said Article 14, the provisions of such agreement and the provisions of such rules shall both be applicable. In the event the provisions of the agreement are different from the provisions of the attendance rules, the provisions of the agreement shall be controlling"(emphasis supplied). 4 NYCRR 29.1 and 29.2 address Leaves Without Pay for officers and employees designated Managerial or Confidential within the meaning of the Taylor Law and, presumably, officers and employees not so designated and not in a collective bargaining unit for the purposes of the Taylor Law. See  Attendance for Managerial/Confidential Employees in New York State Departments and Institutions.] 

Usually a discretionary leave is granted when a permanent employee who is not eligible for a mandatory leave:

1. Requests a leave because the employee accepted an appointment to a position in a different jurisdictional class.

2. Requests a leave because the employee accepted an appointment in another agency in temporary or provisional status.

3. Requests a leave for educational, parenting, or other personal reasons.

Basic Principles of Discretionary Leaves

A leave is discretionary if it is not mandatory.

4 NYCRR 5.2 permits an appointing authority to grant a discretionary leave for two years. At the end of this initial two years permission to extend such leave must be granted by the Civil Service Commission.

In some cases the courts have viewed a discretionary leave as being essentially a "contract" between an employee and his/her appointing authority. For the specified period the employee is entitled to be absent and, at the end of that period, to return. The terms of these contracts may only be changed by mutual consent, with the exception that employees on discretionary leave to serve in another position in the State service must be restored upon request.

A leave of absence does not prohibit the agency from dealing with the position in the normal course of business, e.g., filling the position, abolishing the position or assigning the position to a different location.

Employees may not be on mandatory leave and discretionary leave simultaneously from the same position.

Where an extension or further extension is not granted, the employee must return to the former position (i.e., title and status) and serve for six months before the agency may grant them a "new" discretionary leave, which does not require Commission approval.

Rights to Return to a “Hold Item”

Although for the sake of record-keeping a position (called a "hold item") is always identified, and usually the employee returns to it, management's right to assign and reassign staff among available positions overrides any right to a specific position, or even a location. The employee has the right to return to a position in their former title, jurisdictional class and appointment status.

When restoration to a hold occurs the agency designates the specific position. Agencies may change designated hold items and may reassign hold items to different locations at any time. However, some negotiated agreements may provide rights and limitations when employees return (for example see CSEA, I.S.U. Article 12). Further, agencies may not arbitrarily or capriciously reassign employees, nor do so punitively.

An employee who refuses to return to a hold item which was moved to a different geographic location (i.e., different county) is considered to have declined a reassignment, and is eligible for reemployment list status, but the employee is not eligible for bumping or retreat.

An employee granted a mandatory leave while serving probation may request restoration to a hold item prior to end of the leave, and the agency must restore the employee. This right to return is only provided under rule and contract to an employee granted mandatory leave while serving probation (4 NYCRR 4.5).

An employee who has been temporarily or provisionally appointed to another competitive class position, within the same agency, must be restored upon request (4 NYCRR 4.10).

A contingent permanent employee who is affected by the return of a prior permanent incumbent must be offered restoration with permanent status to the hold item required for this purpose by 4 NYCRR  4.11 and 4 NYCRR 4.12 provided the employee was originally appointed to the hold item in permanent status. If however, the employee was originally appointed to the hold item in contingent permanent status, and the agency made subsequent contingent permanent appointments to the same position, a comparison of the seniority dates (seniority dates are determined in accord with §80, or §80-a of the Civil Service Law) of all the contingent permanent appointees is required. Only if the returning former contingent permanent employee is the most senior may the employee return. If the one prior permanent incumbent has already returned, the contingent permanent employee may not return, regardless of seniority.

A contingent permanent employee who has completed probation may not voluntarily return to a hold item in the absence of a return of incumbent. Complete policy information regarding contingent permanent appointments and leaves can be found at SPMM 1810.

Appointments to Positions in the Non-competitive Class

A non-competitive phi designation on an employee's current position or the position to which the employee is appointed has no effect on the leave policies herein. See Advisory Memorandum #02-03 for more information.

Non-competitive class employees appointed pursuant to Civil Service Law §55-b/c must be given a leave when appointed to ANY OTHER §55-b/c position. See Advisory Memorandum #02-03 and Policy Bulletin #11-01 for more information.

Appointments to Positions in the Exempt Class

Exempt class employees may be granted a discretionary leave of absence. However, the employee should be informed that the leave does not give the employee the right to return or to hold the position for any period of time. The exempt class employee continues to serve at will, albeit while on leave.

Pending Commission Review

Newly classified positions are competitive class positions until the Commission and Governor act to place them in another jurisdictional class (with the exception of titles the Commission has designated that "all" positions in the title are in a particular jurisdictional class, and, therefore a newly classified position is immediately placed in that jurisdictional class). After the Commission acts, the position is considered "pending non-competitive," "pending exempt," or "pending labor" as a shorthand way of keeping track of the status. But, in fact, the jurisdictional class does not change from competitive until the entire administrative process is complete and the resolution is filed with the Department of State. Therefore, a permanent competitive class employee appointed to such a pending position, or an incumbent whose position has been reclassified to a pending position, should be considered as having received an appointment to a competitive class position for the purposes of leave rights under the provisions of 4 NYCRR 10.

When an exempt class position becomes vacant it is reviewed by the Commission. During the review period, only appointments in temporary status are permitted. A permanent competitive class or non-competitive class employee appointed on a temporary basis to such a position is not covered by 4 NYCRR 4.10 or negotiated agreements and therefore any leave granted must be discretionary.

Summary of Mandatory Leaves of Absence by Type of Appointment

Depending upon the type of appointment that a permanent employee receives, various negotiated agreements and the Civil Service rules may require a leave of absence be provided from the current position. The following tables summarize this department's interpretations of the various rules, laws and negotiated agreements which mandate a leave of absence be provided when certain appointments occur. The compilation of the tables is intended to provide a complete catalog of the conditions under which mandatory leaves are provided. It is recognized that there is an overlap between the various authorities under which leaves are mandated. Where such overlaps occur, the leave which provides the greatest benefit to the employee, either in terms of duration or limitations, should be applied.

The rules refer to specific sections of the Classified Service Rules. The negotiated agreements can be found on the GOER website at  https://www.goer.ny.gov/Labor_Relations/Contracts/.

Promotion is defined as:

The appointment of a permanent competitive, non-competitive or labor class employee to a competitive class position via appointment from a promotion or transition list; OR

The appointment of a permanent non-competitive or labor class employee to a higher grade position in the same jurisdictional classification.

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The Department of Civil Service may update the tables on the online version of this Memorandum to reflect changes resulting from future negotiations or reinterpretation. When updated, the previous tables will be chronicled in the Staffing Division policy files.

The online version of this Policy Bulletin, including the tables, is posted on the Internet at: 
https://www.cs.ny.gov/ssd/Manuals/SPMM/2200SeparationsLeaves/Policy%20Bulletin%2016-01.htm