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August 23, 2018

Placing an employee on disability leave pursuant to Civil Service Law Section 72


Placing an employee on disability leave pursuant to Civil Service Law Section 72
Jimenez-Reyez' v State of New York, 2018 NY Slip Op 05649, Appellate Division, Third Department

§72 of the Civil Service Law provides for the placement of an employee unable to perform the duties of his or her position as the result on an injury or disease that is not "job related" on leave without pay.* The employee, however, may elect to use his or her leave credits to remain on the payroll until such leave credits are exhausted.

The basics with respect to placing an employee on disability leave pursuant to §72, except where the appointing authority determines that the individual's continued presence at the job site constitutes a danger to the individual or to his or her coworkers or agency clients within the meaning of §72.5 of the Civil Service Law, are as follows:

1. An employee may not be place on §72 leave until employee has been examined by a physician designated by the State Department of Civil Service or a municipal commission having jurisdiction;

2. In the event the physician certifies that the individual is unable to perform the duties of his or her position and the appointing authority decides to place the individual on §72 leave, the employee must be notified of this decision and of his or her right to appeal the determination before being placed on such leave and except as permitted by Section 72.5, the appointing authority may not place the individual on Section 72 leave until a final determination is made by the appointing authority.*

3. An individual placed on Section 72 leave has the right to appeal the appointing officer's "final determination" placing him or her of such leave to the "civil service commission having jurisdiction."

In contrast, in the event the appointing authority deems the employee's continued presence at the job site a danger to the individual or to his or her coworkers or agency clients, the employee may be placed on disability leave immediately and involuntarily pursuant to §72.5 of the Civil Service Law.

Johnny Jimenez-Reyez [Petitioner] was employed as a police officer by the State University of New York Downstate Medical Center [Downstate]. Petitioner was placed on immediate involuntary medical leave pursuant to §72.5 of the Civil Service Law after psychological testing conducted by an emergency health services physician determined that he was mentally unfit to perform the duties of his position at that time.

Petitioner's employment was terminated** one year later based on the written decision of a Hearing Officer who concluded that Petitioner had been properly placed on leave of absence involuntarily by the appointing authority because he was mentally unfit at that time he was placed on such leave pursuant to §72.5. The Hearing Officer also recommended that Petitioner be terminated from his position.

In an earlier proceeding initiated by Petitioner commenced after his employment was terminated by the Appointing Authority and his request for a post-termination hearing was denied, the Appellate Division "confirmed the determination placing [Petitioner] on involuntary leave, annulled the determination terminating his employment and remitted the matter to Downstate to conduct a post-termination hearing."

The "post-termination" Hearing Officer found that Petitioner failed to prove that he was mentally fit to return to work on the date of his termination and Downstate notified Petitioner that his employment was terminated. Petitioner thereupon commenced a second Article 78 proceeding seeking a court order annulling Downstate's determination to terminate his employment and reinstating him to his position with back pay and benefits.

Rejecting Petitioner's argument that the Hearing Officer incorrectly placed the burden of proof on Petitioner to demonstrate that he was mentally fit to return to work on the date of termination, the Appellate Division explained that the Civil Service Law requires that an employee who seeks reinstatement after being placed on leave pursuant to §72.1 or §72.5 to first apply for a medical examination to be conducted by a medical officer selected by the responsible civil service commission or personnel officer. Further, said the court, an employee absent on §72 for one year or longer may be terminated from his or her position in accordance with the provisions of Civil Service Law §72.4 of the Civil Service Law.***

In the event the individual is terminated, §73 of the Civil Service Law provides that the employee can be restored to employment only upon a finding that he or she is medically fit to perform the duties of the position and the individual must apply for such a medical examination within one year of the termination of his or her disability.

In this instance, said the Appellate Division, Petitioner failed to comply with the statutory requirement of applying for a medical examination to test his fitness for reinstatement nor did he submit proof at the post-termination hearing that his mental condition had sufficiently improved prior to the effective date of his termination to allow him to perform the duties of his position.

Finding that the record of the post-termination hearing was substantively the same record on which the Appellate Division based its prior determination that Petitioner was properly placed on leave because he was mentally unfit to perform the duties of his position, the court ruled that Petitioner's failure to produce evidence that he had become mentally fit to perform the duties of his position as of the effective date of his termination required the confirmation of the appointing authority decision to terminate his employment pursuant to §73 of the Civil Service Law.

* An employee suffering an "occupational injury or disease" as defined in New York State's Workers' Compensation Law may be placed on disability leave pursuant to §71 of the Civil Service Law.

** Typically the appointing authority's "final determination" placing an employee on leave pursuant to §72 is preceded by a hearing conducted by an "independent hearing officer" agreed upon by the employee and the appointing authority or as may be required pursuant to the terms and conditions of collective bargaining agreement. With respect to employees of the City of New York, such a hearing may be conducted by a hearing officer employed by the New York City Office of Administrative Trials and Hearings.

*** §72.4 of the Civil Service Law provides as follows: 4. If an employee placed on leave pursuant to this section is not reinstated within one year after the date of commencement of such leave, his or her employment status may be terminated in accordance with the provisions of section seventy-three of this article.

The decision is posted on the Internet at:

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