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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

March 26, 2021

Determining eligibility for a two-year leave of absence on Workers' Compensation Leave as the result of an alleged assault sustained in the course of employment

§71 of the Civil Service Law, as relevant in this action, provides that in the event "an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the [New York State's Workers' Compensation Law,] he or she shall be entitled to a leave of absence for at least one year, 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."

§71 further provides that "where an employee has been separation from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a leave of absence for at least two years, 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 employee [Plaintiff] in this CPLR Article 78 action was a correction officer and suffered injuries inflicted by a combative inmate. Plaintiff was able to work for a few days after the incident but then did not report to work, was placed on workers' compensation leave, and has since remained continuously out of work. The Appointing Authority [Employer] subsequently notified Plaintiff that her employment would be terminated* as her absence from employment at that point in time exceeded one cumulative year of absence.

Plaintiff objected to the termination and requested that she be granted a two-year leave of absence based on "the inmate's assaultive behavior." The Employer rejected Plaintiff's request and terminated. Plaintiff appealed, contending that she was entitled to a two-year leave of absence as a matter of law as she was the victim of an assault by an inmate in the course of her performing the duties of her position.

The Appellate Division's decision noted that the Employer defines the term assault as "an intentional physical act of violence directed towards an employee by an inmate or parolee." while, in contrast, Plaintiff contends the definitions of assault set forth in Penal Law §§120.00(1) and 120.0 (1), (3) and (7) should control.

Citing Morales v New York State Dept. of Corr. & Community Supervision, 2021 NY Slip Op 01459, the Appellate Division opined that while the record indicates that the inmate was combative and struck another correction officer, there is no indication that Plaintiff's injury resulted from the inmate's "intentional physical act of violence directed towards [her]".

Under the facts presented, the Appellate Division said it concluded that the Employer's determination was not arbitrary and capricious or irrational and sustained the Employer's determination.

* A termination pursuant to §71 is not pejorative as the individual may, within one year after the termination of the disability, apply to the civil service commission having jurisdiction for a medical examination and if certified as physically and mentally fit to perform the duties of his or her former position, he or she is be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant position for which he or she was eligible for transfer. If no appropriate vacancy which reinstatement may be made is available, the name of individual is placed on a preferred list and he or she is eligible for reinstatement from such preferred list for a period of four years.

Click HERE to access the full text of the Appellate Division's decision.

 

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