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February 29, 2024

Termination of employment of an employee who has been continuously absent without official approval since February 2022 recommended

New York City Office of Administrative Trials and Hearings Administrative Law Judge Orlando Rodriguez recommended termination of employment for a patient care associate [Respondent] who had been continuously absent without approval  since February 17, 2022.

There was no dispute that Respondent's absences were due to her disability and that she could no longer perform her work duties.

The ALJ rejected Respondent’s argument that the Employer’s pursuit of disciplinary action violated the City’s Human Rights Law, finding that such violation may only be found where the employee has been able to demonstrate rehabilitation at the time of disciplinary action.

Judge Rodriguez also rejected Respondent’s argument that the proceeding should be converted to a proceeding under §72 of the Civil Service Law.* The ALJ said "it is well-settled that a government agency may choose to bring disciplinary charges for time-and-leave violations rather than a disability proceeding, even when the misconduct is caused by a disability".

Finding that Respondent has been continuously absent without authorization, the ALJ recommended that the Respondent be terminated from her position.

* NYPPL notes Respondent did not dispute that she has not returned to work since February 17, 2022 and claims she can no longer perform the duties of her position because of "injuries she sustained in a car accident nine years ago, which have worsened over time". 

Section 73 of the Civil Service Law provides for the removal of a tenured employee in the classified service placed on leave pursuant to §72 of the Civil Service Law if he or she has been continuously absent from work for one year or more because of a non-work related injury or illness. Termination pursuant to §73 is at the discretion of the appointing authority. 

Termination following a cumulative period absence of one year or more due to a work-connected injury or illness is controlled by §71 of the Civil Service Law. Again, termination of an individual placed on a §71 leave of absence is at the discretion of the appointing authority. 

N.B. §71 provides "where an employee has been separated 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".

Click HERE to access to the decision issued by Judge Rodriguez posted on the Internet.

 

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