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September 26, 2023

Termination of an employee placed on leave as the result of a disability resulting from occupational injury or disease as defined in the worker's compensation law

A Board of Cooperative Educational Services [BOCES] paraprofessional [Petitioner] employed in an elementary classroom setting for children with severe developmental disabilities was attacked and injured a student. Initially able to return to work after her injuries, Petitioner subsequently stopped coming to work and one year later BOCES, contending that "it did not consider the [Petitioner's] injuries to have been the result of an assault sustained in the course of her employment" which would otherwise entitle her to two years of leave pursuant to Civil Service Law §71*, advised Petitioner she would be terminated from her position.

Petitioner challenged the BOCES' action and Supreme Court  granted her petition, annulling BOCES' determination. The court directed BOCES to reinstate Petitioner to her employment status as it existed prior to the effective date of the BOCES' determination and to continue such status in accordance with §71 of the Civil Service Law. BOCES appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower court's judgment, with costs, explaining:

1. "The standard of judicial review in the instant proceeding pursuant to CPLR Article 78 is whether the action was arbitrary and capricious, an abuse of discretion, in violation of a lawful procedure, or affected by an error of law", citing Matter of Still v City of Middletown, 133 AD3d 864;

2. An "Administrative action is arbitrary when it is without a sound basis in reason and is taken without regard to the facts," noting C.F. v New York City Dept. of Health & Mental Hygiene, 191 AD3d 52 and other decisions cited in the opinion; and

3. BOCES's determination to terminate the Petitioner's employment "was conclusory and lacked a factual basis."

Accordingly, said the Appellate Division, Supreme Court "properly granted the petition" and provided the appropriate relief required under circumstances.

* N.B. Civil Service Law §71, in pertinent part, provides an employee absent by "reason of a disability resulting from an assault sustained in the course of his or her employment ... shall be entitled to a leave of absence for at least [a cumulative period of] 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." Typically such absence is "leave without pay" although the disabled individual may be able to elect to remain on the payroll if able to charge such absence to accrued leave credits. In contrast, see General Municipal Law §207-a, which provides for the payment of salary, medical and hospital expenses with respect to firefighters for injuries or illness incurred in performance of duties and §207-c of the General Municipal Law with respect to similar benefits to specified employees of a police force or a sheriff's department and certain other personnel.

Click HERE to access the decision of the Appellate Division posted on the Internet.

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Disability Leave for fire, police and other public sector personnel.

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Click HERE for information and access to a free excerpt of the material presented in this e-book.

 


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