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December 3, 2020

Absences during an employee's probationary period typically extends the employee's probationary period for an equivalent period of time

Section 5.28[b] of the Personnel Rules and Regulations of the City of New York (PRR §5.28[b])  provides that a probationary employee's probationary period is to be "extended by the number of days [the employee did] not perform the duties of the position."

An individual  [Plaintiff] serving an 18 month probationary period filed a CPLR Article 78 petition challenging the decision of the New York City Administration for Children's Services [ACS] to extend her probationary period pursuant to PRR §5.28[b] "by the number of days [she did] not perform the duties of the position" in consideration of her absences charged to her annual leave credits or her sick leave credits or her absences when "she on leave without pay" during her probationary period.

Supreme Court granted Plaintiff's Article 78 petition seeking a court order annulling the ACS's determination terminating Plaintiff's employment and directed ACS to reinstate Plaintiff to her former position of Child Protective Specialist [CPS] subject to her satisfactory completion of a six-month probationary period. 

The court also directed the ACS to provide "a reasonable accommodation for [Plaintiff's] disabling condition* subject to the usual agency rules and procedures" should the Plaintiff so request.

The Appellate Division unanimously reversed the Supreme Court's decision, on the law, denied Plaintiff's petition and dismissed the proceeding brought by Plaintiff against ACS pursuant to CPLR Article 78.

Citing Matter of Kaufman v Anker, 42 NY2d 835, the Appellate Division opined that "[b]ased upon the record presented, the [ACS'] determination that [Plaintiff] fell short of completing the probationary period was rational and not arbitrary or capricious or contrary to law."

Addressing Plaintiff's assertion that her "overtime days" should be counted in determining the completion of her 18 months probationary period, the court explained that although PRR §5.28[b] makes provision for extending a probationary period, day-for-day, for days on which the employee is absent from work, it contains "no provision for shortening the period, from 18 months to something less, for extra work days beyond the five standard days a week."

 The Appellate Division then observed that "existing case law has been hesitant to reduce the period of probationary service" for absences during a probationary period such as the probationer's serving on jury duty, referring the court's decision in Tomlinson v Ward, 110 AD2d 537.

The bottom line: The Appellate Division held that Plaintiff "never completed her probationary period and [consequently] she was not entitled to reinstatement to her former position".

The general rule with respect to extensions of the probationary period for employees in the Classified Service is that in the event a probationary employee is absent during the required probationary period, that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent.** [see Mazur, 98 AD2d 974]. 

For example, 4 NYCRR 4.5(f),*** a Rule adopted by the New York State Civil Service Commission pursuant to the authority set out in Civil Service Law §63.2, provides that with respect to employees of the State as an employer, “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.” However, appointing authorities may be granted authority to waive a limited period of such absence consistent with the rules of the responsible civil service commission.

Another element to consider is the extension of the probationary period in the event an employee is given a “light duty” or some other alternate assignment while serving his or her probationary period [see Boyle v Koch, 114 A.D.2d 78]. 

Also, in Matter of Garnes v Kelly, 2007 NY Slip Op 30262(U); affirmed 51 AD3d 538, the court concluded that a probationary period is extended as the result 0f the employee's disciplinary suspension from his position for off duty misconduct.

In contrast, §§243.9 and 243.9-a of the New York State Military Law provides that a probationary employee called to military duty before completing his probationary period is deemed to have satisfactorily completed the required probationary period upon the employee's honorable discharge from such military duty.

* The Appellate Division's decision notes that Plaintiff "left ACS of her own accord to work at the City Clerk's office, during a time when ACS was still engaging in an interactive dialogue and attempting to accommodate her disability. The New York City Human Rights Law, said the court, " ... does not require the City to rehire an employee who voluntarily departed for employment elsewhere."

** See Matter of Mazur, 98 AD2d 974.

*** 4 NYCRR 4.5(g), in pertinent part, provides that with respect to absence during probationary term, Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term. … Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term.

The CPS decision is posted on the Internet at


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