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February 22, 2019

Workers' Compensation Leave is not an available to an employee who has suffered a permanent job related injury or disease


Workers' Compensation Leave is not an available to an employee who has suffered a permanent job related injury or disease
OATH Index No. 1774/18

The appointing authority served disciplinary charges against an employee pursuant to §75 of the Civil Service Law alleging "medical incompetence  based on the employee's  "excessive use of sick leave due to job-related injuries." The penalty sought: termination.

The employee argued that the disciplinary charges should be dismissed and that the matter  converted to a disability leave proceeding within the meaning of §71 of the Civil Service Law. §71 mandates that leaves of absence, typically referred to as Workers' Compensation Leave, is to be given to an individual absent from work as the result of the individual having suffered an occupational illness or disease for specified cumulative limited periods of time "unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position." [Emphasis supplied.]

Noting that the employee had filed for "permanent disability retirement" benefits, OATH Administrative Law Judge Faye Lewis concluded that §71 leave was not an available option under the circumstances and that the appointing authority could proceed with disciplinary action.*

As the evidence in the record indicated that the employee had been absent for almost "300 sick days over a 21 month period," which Judge Lewis found was  sufficient to establish an excessive use of sick leave, the ALJ found the employee guilty of the charges and specifications and recommended that the penalty of dismissal be imposed by the appointing authority.


* In Dickinson v New York State Unified Court System, 99 AD3d 569, the Appellate Division unanimously confirmed the termination of an employee found guilty of “certain disciplinary charges” that alleged, among other things, incompetency due to excessive absenteeism and lateness. As to the penalty imposed, dismissal, the court said that the penalty did not shock its sense of fairness as “[b]eing present at work is an essential job function.”

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1774.pdf


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