May 20, 2018

Due process procedure for mental disability leave set


Due process procedure for mental disability leave set
Laurido v. Simon, 489 F. Supp. 1169

Section 72 of the Civil Service Law authorizes an appointing authority to place an employee on leave of absence if the employee is certified not mentally fit to perform the duties of the position. Judge Haight of the U.S. District Court, Southern District of New York (Matter of Laurido) after holding that a state employee was not provided the required due process in connection with his being placed on leave pursuant to Section 72, prohibited placing employees on such leave unless the following procedural steps are followed:

        *"Written notice of the facts relied upon by the appointing authority to suggest that the employee is not mentally fit to perform the duties of his or her position in advance of the employee's examination by an employer's physician.

        *"Written notice of the physician's findings

        *"Written notice of the appointing authority's determination with respect to the involuntary leave, and the reasons and facts in support thereof.

        *"Written notice of the employee's right to appeal the appointing authority's determination and  the procedures for perfecting such appeal.

        *"Pre-hearing release to the employee, or his or her authorized representative, of the employee's medical records and related data, upon written request of the employee or the employee's personal physician or attorney, where authorized.

        *"Upon timely request, an adversarial type hearing, before an impartial decision maker, at which hearing the employee may be represented by counsel and may present evidence on his or her own behalf.

        *"Written notice of the hearing decision, together with a statement of the reasons and facts relied upon in support thereof."

Judge Haight noted that there might be compelling circumstances which would require the immediate suspension of an employee for the safety of the employee, the employee's co-workers or the public, or for the proper conduct of business, indicating that under such circumstances an immediate leave of absence may be directed but the procedures described above must be provided promptly thereafter. The Court also indicated that should the employee succeed in reversing the initial determination, reinstatement together with back pay and the restitution of leave credits would be required. It should be noted that alcoholism and substance abuse are defined as mental disabilities in the State's Mental Hygiene Law and Human Rights agencies have viewed such conditions as a "disability".

The decision is posted on the Internet at:

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