March 19, 2019

Procedures required to be followed by an appointing authority seeking to place an employee on disability leave pursuant to Civil Service Law §72 involuntarily

The basics with respect to placing an employee on ordinary disability leave pursuant to §72 of the Civil Service Law* involuntarily, 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 involuntarily be place on leave pursuant to §72.1 of the Civil Service Law by an appointing authority until employee has been first examined by a physician designated by the State Department of Civil Service or the municipal civil service 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 §72.1 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 leave pursuant to §72.1 leave until a final determination is made by the appointing authority; and

3. An individual placed on leave pursuant to §72.1 has the right to appeal the appointing authority'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 to be an immediate danger to the individual or to his or her coworkers or agency clients, the employee may be placed involuntarily on disability leave immediately pursuant to §72.5 of the Civil Service Law.

Section 72, however, places “the burden of proving an employee's mental or physical unfitness on the appointing authority alleging it.” To satisfy this burden, the appointing authority must prove, by a preponderance of the evidence, that:

(i) the employee suffers from a disability unrelated to an occupational injury or disease;

(ii) that she or he is unable to competently perform her or his job duties; and

(iii) his or her inability to so perform is caused by his or her disability.

The focus of the §72 proceeding is on “the employee’s current fitness and ability to perform his or her job duties, not on his or her past condition or work performance” and “[p]ast performance is relevant only to the extent that it is probative of employee’s present condition and future conduct."

In a §72 disability proceeding, while the opinions of medical experts can inform and aid the fact finder in reaching the his or her conclusion, the fact finder is not required to accept the opinions or conclusions of any given expert, but must weigh the evidence in the record and draw his or her own inferences. Weighing the evidence and resolving issues of credibility “is primarily the province of the designated hearing officer, who has had the opportunity to see and hear the witnesses.

The testimony of an expert witness is part of the proof to be considered by the hearing officer and the hearing officer may reject an expert’s opinion if he or she finds the facts to be different from those which form the basis for the expert's opinion.

Absent the employee being immediately place on an involuntary leave pursuant to §72.5 of the Civil Service Law, the employee is continued as an "active employee on the job" until the employee is determined by the appointing authority to be disabled with respect to he or she satisfactorily performing his or her duties of the position. In the event the appointing authority makes a final determination that finds the employee to be disable and unable to satisfactorily perform his or her duties and places the individual on leave pursuant to §72, the appointing authority shall advised the employee of the appointing authority's decision and of the fact that the employee has the right to appeal the appointing authority's decision to the civil service commission having jurisdiction in accordance with §72.3 of the Civil Service Law.**

In this action, adjudicated before the New York City Office of Administrative Trials and Hearings [OATH], the employee had been placed on "pre-trial involuntary leave" pursuant to §72.5 of the Civil Service Law based upon complaints that she failed to perform assigned tasks and engaged in disruptive behavior, including spraying a chemical substance in the air, playing loud music, and singing at her work station. The employee was subsequently examined by a psychiatrist who found her unfit to perform the job due to a mental disability. The employee challenged the finding of medical expert that she was unfit to perform her duties and the need to place her on a "pre-trial involuntary leave."

As OATH Administrative Law Judge Astrid B. Gloade noted, the "complaints" recited by the appointing authority were not "pleading" and the fact that an employee committed the alleged acts "was not an element to be proven at the hearing.”  Rather the employee was diagnosed by the appointing authority's medical expert as having a "delusional disorder" that adversely affected her performance of her duties and the appointing authority was required to prove such "cause and effect."

Explaining that the medical expert's diagnosis introduced by the appointing authority was, in the opinion of the Administrative Law Judge, "unreliable," Judge Gloade observed that even if the appointing authority's evidence satisfied the first prong of its burden, the appointing authority failed to establish a causal connection between the "diagnosed delusional disorder" and employee’s inability to perform her job. In the words of the ALJ, "The fact that an employee may have a psychiatric disorder does not establish that she [or he] is unable to perform the duties of her [or his] position."

With respect to the employee's alleged failed to perform assigned tasks and engaged in alleged disruptive behavior at her work station, the ALJ said that this simply served as written notice of the facts upon which the appointing authority based its determination that the employee is not fit to perform her duties and forms the basis for having the employee medically evaluated.

Turning to the employee having being placed on "Pre-Hearing Suspension" pursuant to §72.5 of the Civil Service Law, the ALJ explained that by having placed employee on an "emergency leave prior to the trial," the appointing authority must further establish that the standard authorizing place the employee on leave under color of §72.5 was satisfied.

§72.5 permits the placement of the employee on involuntary "emergency leave" prior to a hearing only in situations where the agency has 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 agency operations.

Following a three-day hearing, ALJ Gloade found that the appointing authority  did not prove that the employee was currently unfit to perform her duties or that there was a sufficient basis to place her on "pre-trial involuntary leave." The doctor’s report and testimony, said the ALJ, failed to provide the basis for her conclusion that the employee suffers from a mental disability which precludes her from performing her duties.

Addressing the employee's placement on involuntary pre-trial leave, §72.5 allows such leave only in emergency situations where the agency has probable cause to believe the employee’s continued presence on the job represents a potential danger to persons or property or would severely interfere with operations. Here, said the ALJ, the agency did not prove either justification. Judge Gloade opined that in this instance the standard that would justify placing the employee involuntarily on §72.5 was not met, noting that placing an employee in an involuntary emergency leave status is an “extraordinary measure,” due in part to the financial hardship to the employee because there is no limit to the length of such leave.***

Judge Gloade also noted that the appointing authority failed to demonstrate that the agency had probable cause to believe that the employee was dangerous or that her presence in the workplace would “severely interfere with operations.”

Also noted was that the testimony at the hearing indicated that the staff became “very concerned” about the employee’s behavior during the two workdays preceding imposition of the involuntary leave on the employee and additional justification for her placement on leave pursuant to §72.5 were claims that the employee refused to review assigned cases, ignored her supervisor’s instructions, and kept clutter at her desk.

Such behavior, however, was ruled by the ALJ to be insufficient to establish that the employee posed a danger to herself or to others. Nor, said Judge Gloade, did the evidence demonstrate that the employee's behavior would “severely interfere” with the unit’s operations as no evidence was presented by the appointing authority that the employee's conduct during the relevant time period caused any significant disruption to the unit’s functioning sufficient to warrant that she be placed on an involuntary leave pursuant to §72.5.

In the words of the Administrative Law Judge, "In sum, [the appointing authority] lacked probable cause to believe that an emergency leave was warranted between April 26, 2018, and May 29, 2018," and thus the employee was entitled to reinstatement to her position to to the restoration of any lost salary or leave credits used during that period.

Accordingly, ALJ Gloade recommended the appointing authority's petition be dismissed and that the employee be reinstated to her position with back salary, if any was due her, and restoration of any leave accruals the employee used during the period of her pre-trial leave. 

* Employees suffering an occupational injury or disease as defined in the Workers' Compensation Law and are unable to perform the duties of their position are placed on what is commonly referred to as "Worker's Compensation Leave" pursuant to §71 of the Civil Service Law 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. 

** The final determination of the civil service commission is binding on both the employee and the appointing authority. Either party, or both, however, may seek review of a final determination of a commission in accordance with the provisions of Article 78 of the Civil Practice Law and Rules.

*** Leave pursuant to §72 is "leave without pay" although an individual on such leave may elect use his or her "accrued leave credits" and other available leave credits until all such leave credits are exhausted in order to remain on the payroll. Further, in addition to involuntarily being placed on §72 leave by the appointing authority, when such an action is not initiated by the appointing authority an employee may request to placed on such leave, the approval of such a request to be granted at the discretion of the appointing authority.

N.B. A decision by the Second Circuit, Tooly v. Schwaller, 17‐3564‐cv, addressing  disability leave pursuant to §72 considered a defenses advanced by one of the defendants -- qualified immunity -- was handed down by the court on March 20, 2019. The text of the ruling is posted on the Internet at:

The decision is posted on the Internet at:


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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