ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

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 StateDept. 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.

 

CAUTION

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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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.
New York Public Personnel Law. Email: publications@nycap.rr.com