May 22, 2018

The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease


The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease
Singleton v New York State Off. of Children & Family Servs., 2018 NY Slip Op 03411, Appellate Division, Third Department

The employee in this action, Charles Singleton, was injured on the job and was placed on leave pursuant to §71 of the Civil Service Law, commonly referred to as "Workers' Compensation Leave."

Essentially Mr. Singleton's employer, the New York State Office of Children and Family Services, OCFS, wrote to him indicating that he had the "right to a leave of absence from [his] position during [his] disability for a period of one cumulative year or sooner if found to be permanently disabled" and that if he did not return to work prior to the expiration of his workers' compensation leave his employment could be terminated as a matter of law."*

This, however, was not a pejorative termination in the nature of "termination for cause" as the individual placed on §71 has significant rights to reinstatement to his or her position, or to a similar position. Indeed, §71 does not use the word "termination" to describe the status of the individual on "Workers' Compensation Leave" upon the expiration of his or her §71 leave but rather refers to his or her status as having be "separated" from service as demonstrated by reference in the law to his or her rights to "Reinstatement after separation for disability."

Clearly the employee may return to work prior to the expiration of his or her leave of absence if medically qualified to perform the duties of his or her position.

If the employee does not return to work prior to the expiration of his or her §71 leave of absence, he or she may be separated from service but becomes eligible for reinstatement to his or her former position, or a similar position if his or former position is not available, upon his or her making [1] a timely request to return to duty and [2] being certified as being medically qualified to perform the duties of the position.

In the words of §71, "Such employee may, within one year after the termination of such disability,** make application to the [NYS] 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."

In the event the individual is found medically qualified to return to work and no suitable position is available, §71 further provides that "If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years."

* Mr. Singleton had contended that he had sustained injuries from an assault-related injury at work which entitled him to a two-year leave pursuant to §71. OCFS notified petitioner that he had been placed on workers' compensation leave and that his injuries had been classified as a "non-assault injury," and thus was only entitled to a one-year leave of absence pursuant to §71.

** N.B. It is the date of  termination of  the individual's disability, in contrast the effective date of  the individual's "separation" upon the expiration of his or her "Workers' Compensation Leave," that triggers the running of the one-year statute of limitation for the purpose of the individual applying for reinstatement to his or her former, or a similar, employment. If the individual is determined not to be qualified to return to work, he or she continues as "separated" and may apply for reinstatement and a medical re-examination at some  future date.

The decision is posted on the Internet at:

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