June 21, 2021

Processing the application of an employee of Civil Service Law Section 71 accidental disability leave seekikng to return to duty

An employee [Plaintiff] employed by a state agency [Department] suffered a work-related injury and was placed on workers' compensation leave pursuant to Civil Service Law §71. Plaintiff regularly submitted medical documentation supporting her assertion that she was unfit to return to her employment. Department then notified Plaintiff that as she had been absent for one cumulative year, she would be terminated from her position. Department also advise Plaintiff that she could apply for restoration to duty if she was medically fit and directed her "to submit medical documentation clearing her to return to work before an examination was scheduled."

Plaintiff, however, ignored this directive and scheduled the medical examination on her own.* Upon learning of this, the Department, apparently relying on 4 NYCRR 5.4(d)(1),** cancelled the appointment and subsequently terminated Plaintiff 's employment after she declined to submit the requested medical documentation to the Department for review.

Plaintiff then commenced a CPLR Article 78 proceeding alleging that:

[1] the Department violated the Civil Service Law and its regulations;

[2] her termination was arbitrary and capricious;  and 

[3] her due process rights were violated. 

Ultimately Supreme Court dismissed Plaintiff's petition finding that it was not unreasonable, irrational or arbitrary for the Department to request certain medical information prior to making its preliminary determination as to petitioner's medical fitness to perform the duties of her position and that Plaintiff failed to demonstrate that the Department's request for medical documentation was an error of law.

Plaintiff appealed the Supreme Court's judgment, contending that 4 NYCRR 5.9 places no duty upon her to submit medical documentation in order to return to work. 

The Appellate Division disagreed, opining that 4 NYCRR 5.9(c)(2) provides that an  employee on §71 leave has a "right to apply to the appointing authority pursuant to subdivision (d) of this section for reinstatement to duty if medically fit" (emphasis added by the court).

The Appellate Division explained that the requirement that employee then on §71 leave to initially produce medical documentation showing the employee is medically fit to return to work "prior to scheduling a medical examination promotes an efficient procedure, in a fiscally sound manner, that is rationally related to the Department's interest in returning only medically fit employees to their duties."

Noting that the record indicated that Plaintiff never asserted that she was medically fit to perform her duties prior to her termination and that the only medical documentation presented to the Department for over one year consisted of statements from Plaintiff's own physician attesting that she was unable to return to work, the Appellate Division concluded that the Department's determination was not arbitrary and capricious or irrational.

Addressing Plaintiff's claim that the Department's failure to provide her with a medical examination violated her due process rights, the Appellate Division said that the record indicates that Plaintiff "received a pretermination notice that set forth the reasons she was being terminated, explained that she could apply for reinstatement if medically fit, requested her to produce medical documentation showing that she was fit and informed her that she was entitled to a pretermination meeting." 

Thus, said the court, Plaintiff's  due process rights were satisfied as she was provided [1] with an explanation of the grounds for discharge; [2] given an opportunity to respond prior to her actual termination; and [3] did in fact participate in a pretermination meeting.

* §71 of the Civil Service Law further provides that an individual terminated from the position pursuant to §71 may, within one year after the termination of the disability, make application to the civil service department or municipal commission having jurisdiction for a medical examination.

** 4 NYCRR 5.4(d)(1), Restoration to duty from workers' compensation leave, provides "(1) Upon request by the employee, the appointing authority, if satisfied that the employee is medically fit to perform the duties of the position, shall restore the employee to duty. If not satisfied that the employee is medically fit to perform the duties of the position, the appointing authority shall require the employee to undergo a medical examination, by a physician designated by the appointing authority, before the employee may be restored to duty. Prior to the medical examination, the appointing authority shall provide the designated physician and the employee with a statement of the regularly assigned duties of the position from which the employee is on leave."

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

 

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