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. 

 

The Juneteenth National Independence Day Act established June 19th as a federal holiday.

Juneteenth, the federal holiday commemorating the end of slavery in the United States, is observed on June 19. President Joe Biden "signed the new holiday into law" on Thursday, June 17, 2021.

As it falls on a Saturday in 2021, Juneteenth is being observed by Federal employees on a workday, Friday June 18, 2021. 

On June 14, 2020, New York State Governor Andrew M. Cuomo signed into law legislation designating Juneteenth as an official public holiday in New York State. The Governor earlier issued an Executive Order recognizing Juneteenth as a holiday for New York State employees.

Other jurisdictions have designated Juneteenth as holiday by proclamation. 

For example, then Massachusetts Gov. Deval Patrick signed a proclamation recognizing Juneteenth as a holiday in Massachusetts in 2007 while Maryland Governor Larry Hogan  has announced that Maryland State government agencies and offices will be closed on Friday, June 18, 2021, in observance of Juneteenth National Independence Day and West Virginia's Governor Jim Justice issued a proclamation on June 18, 2021, officially declaring Juneteenth a State holiday in West Virginia.

 

Local law authorizing a "Police Accountability Board" to conduct police officer disciplinary hearings held invalid

A CPLR Article 78 proceeding initiated by the Rochesterpolice union, its president, and an individual Rochesterpolice officer [Plaintiffs] challenged the City of Rochester's Police Accountability Board's [PAB] authority to conduct disciplinary hearings and discipline officers of the City of Rochester Police Department." Supreme Court, among other things, declared parts of Local Law No. 2, which authorize and empower the PAB to conduct such hearing and discipline Rochester police officers, "void and unenforceable."

Supreme Court had agreed with the Plaintiffs and held the City's Local Law No. 2 violated the Taylor Law, Civil Service Law §75, and Unconsolidated Laws §891. The court also, sua sponte, "referred [Local Law No. 2] back to the Rochester City Council "to be reconciled and made compliant with New York State law and the Rochester City Charter."* The City Council appealed the Supreme Court's ruling.

The Appellate Division, noting that "the Rochester City Charter has been amended to grant virtually all authority for disciplining police officers to a new entity called the 'Police Accountability Board' [PAB]," opined that although "the politics swirling around this provision are weighty and fraught ... its legality is not" and held that Supreme Court "properly invalidated Local Law No. 2 insofar as it imbues PAB with disciplinary authority over Rochesterpolice officers without regard to collective bargaining."

The Appellate Division's decision explores the events leading to the establishment of the PAB, relevant law and court decisions, including two procedural issues, and the merits of the Plaintiffs' challenges to Local Law No. 2. 

* The Appellate Division held that Supreme Court "erred by referring Local Law No. 2 "back to the Rochester City Council to be reconciled and made compliant with New York State law and the Rochester City Charter."

The text of the Appellate Division's decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_03787.htm.

 

Determining if a grievance involving a provision in a collective bargaining agreement is subject to arbitration

Supreme Court denied the petitioner's [Employer] CPLR §7503 application to permanently stay arbitration of a grievance between the Employer and the employee organization [Union] initiated pursuant to the collective bargaining agreement [CBA] between the parties. The grievance involved determining the correct amount of the employees' contributions for health insurance coverage. 

Although the Employer contended the grievance was not subject to arbitration, Supreme Court held that the grievance was arbitrable. Employer appealed the ruling.

Observing that the court's role in reviewing applications to stay arbitration is limited, the Appellate Division explained that the threshold issue is to determine whether the subject matter of the grievance is arbitrable. This, said the court, involves a two-part inquiry into whether there is [1] "any statutory, constitutional or public policy prohibition against arbitration of the grievance" and if no such prohibition is found, whether [2] the parties in fact "agreed to arbitrate the particular dispute" by examining the relevant collective bargaining agreement.

Noting that the Employer did not contend that arbitration of the grievance was prohibited by law or public policy, the court said that its inquiry distills to whether the parties agreed to arbitrate this particular grievance.

In the words of the Appellate Division, "[if] the CBA contains a broad arbitration clause, 'an agreement to arbitrate will be found by the court as long as there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA'".

Citing the relevant provisions set out in the CBA, the Appellate Division opined that as the grievance involves health insurance benefits, which are an employee benefit and an express provision of the CBA, the "grievance falls within the scope of disputes that the parties agreed to submit to arbitration." Further, the fact that the substantive clauses of the contract might not support the grievances is irrelevant on the threshold question of arbitrability and "it] is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the parties."

Addressing the Employer additional argument in support of dismissing the Union's Article 75 petition contending that the grievance was untimely filed, the Appellate Division said "[A]ny argument concerning compliance with the grievance process, including any time limitations thereunder, is likewise a matter for the arbitrator to decide".

Accordingly, the Appellate Division concluded that Supreme Court properly denied the Employer's application to permanently stay arbitration.

Click HERE to access the Appellate Division's decision.

 

Hearing officer recommends dismissal of disciplinary charges after finding the employee did not used his position with his employer for personal or financial gain

New York City Office of Administrative Tribunals and Hearings [OATH] Administrative Law Judge Faye Lewis recommended that disciplinary charges against a Human Resources Administration [HRA] employee [Respondent] be dismissed as HRA failed to establish that the Respondent used his position in the agency for personal or financial gain.

HRA contended that the Respondent, a case manager assigned to a center in the Bronx, violated HRA rules and the City Charter by asking former colleagues to give his phone number to public assistance clients who might be interested in renting an apartment from him.

ALJ Lewis determined that HRA employees are permitted to rent property that they own or manage to public assistance recipients if they first submit a questionnaire for approval and that they do not work at the center providing the client’s benefits.

Respondent, said Judge Lewis, followed that procedure in that Respondent did not work at the center providing the client's benefit, and HRA had approved Respondent's request.

In addition, the ALJ noted that Respondent presented "unrefuted evidence that landlords who are not HRA employees have regular contact with case managers and could tell a case manager that they have available apartments to rent."

Accordingly, the Administrative Law Judge concluded that HRA did not establish that Respondent had violated its rules, nor those set out in the City Charter with respect to the rental of the property in question, that triggered the disciplinary charges served on the Respondent.

To access the text of Judge Lewis' decision, click HERE!