November 19, 2018

Restoration of leave credits used during an involuntary §72.1 leave


Restoration of leave credits used during an involuntary §72.1 leave
Vickery v Sinnott, 238 AD2d 818

§72.1 authorizes an appointing authority to place an employee on leave if a medical officer selected by civil service department or appropriate commission certifies that the employee is not physically or mentally fit to perform the duties of his or her position.

If, however, the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property, or would severely interfere with the operations of the agency, another §-- §72.5 -- allows the employee to be placed immediately on an involuntary leave of absence.

An employee who is placed on leave pursuant to §72.5 may use all of his or her leave credits.

If the individual is later determined not to be physically or mentally unfit for duty, he or she is to be reinstated to the position and leave credits used, or salary lost, is to be restored to the employee, less any compensation he or she may have earned or unemployment benefits received during the period of the §72 leave.

Although one might assume that the restoration of such credits is automatic, the Vickery decision suggests that such is not the case. Here the Appellate Division concluded that if the appointing authority refuses to restore such leave credits, or "lost salary," the employee must commence a timely action to compel it to do so.

On April 20, 1993 Robert Vickery, a parole officer, was told that he was being placed on  leave of absence involuntarily pursuant to §72.5 by the Division of Parole. About six months later Vickery was returned to duty. The Division, however, did not restore Vickery's leave credits to him.

Vickery sued, contending that his reinstatement constituted a de facto determination that he was not physically or mentally unfit to perform his duties and that he was entitled to have the leave credits used to continue him on the payroll restored to him as a matter of law.

The problem here, however, was that despite the fact that the Division wrote to Vickery in March 1994 that he would be required to "charge the time missed from work against his accrued leave credits," he did not initiate litigation challenging that determination until March 1995.

This, said the Appellate Division, meant that even if Vickery was correct that his reinstatement meant that he was not incapacitated from performing his duties, his claim was time-barred. Why was the action time-barred? Because, said the Court, Vickery had to initiate his Article 78 contesting the Division's decision within four months of its final determination. His failure to do so was fatal to his pressing his claim for restoration of his leave credits.


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