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July 02, 2021

Consideration of mitigating circumstanses tempers the typical penalty - termination - imposed on an employee who submits a fraudulent medical notes after being absent from work

Although termination is frequently the penalty imposed on a wrongdoer for submitting a fraudulent medical notes to excuse an absence, New York City Office of Tribunals and Hearings Administrative Law Judge Faye Lewis found that in this case it would be excessive. Instead Judge Lewis recommended that the employee be give a penalty of a 60-day suspension without pay.

The employee submitted fraudulent medical notes regarding a seven-day absence from work acknowledged that he altered medical notes to show doctor’s appointments on some of the dates that he was absent from work.

ALJ Lewis credited the employee’s testimony that he fabricated the notes using Write-Out in a panicked, emotional state after his supervisor denied his request for emergency personal leave, which respondent sought because his wife was suicidal and he needed to be home to care for his young daughter.

Although termination is often the penalty imposed for the submission of fraudulent medical notes, the ALJ found that in this case it would be excessive, noting that although the employee’s conduct was a serious error in judgment, his otherwise flawless 16-year record and the extraordinary mitigating circumstances made her recommendation of a penalty of 60 days suspension more appropriate.

Click HEREto access Judge Lewis' findings and recommendation.

 

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NYPPL Blogger 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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