Selected links to judicial and administrative decisions involving an employee's "absence" from work

An employee's absence from work may be based on various reasons or excuses alleged or claimed by the individual. Below are a number common absences from work that served as the genesis for litigation in New York courts.

Accruing vacation and sick leave credits during leave for ordered military leave

Alleged abused the school district’s leave provisions, http://www.counsel.nysed.gov/Decisions/volume39/d14280.htm

Applying the provisions of Civil Service Law §§71, 72 and 73

Determining the compensation to be paid a teacher absent from work when “school is in recess”

Extension of the probationary period as the result of absence during the probationary period

Employee’s reporting feeling “tired, lethargic, fatigue-ish and ill” insufficient notice to trigger the protections of the FMLA

Filing disciplinary charges against an employee where the absence is due to an injury or disease

Negotiating paid religious holidays  

Requiring employees absent on sick leave to be examined by a physician designated by the employer before returning from such leave

Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law

Workers’ compensation leave pursuant to Civil Service Law Section 71

NYPPL's E-book focusing on disability leave for fire, police and other public sector personnel is available for purchase from BookLocker. For information and access to a free excerpt of the material presented in this e-book, Click HERE

In addition, the New York State Workers’ Compensation Board continues to offer its webinar series for workers and their advocates. Workers’ Comp 202: Best Practices to Access Benefits for Workers, A presentation by the Office of the Advocate for Injured Workers.  Webinars currently scheduled are listed below.

The sessions are free and time for questions is provided.

Tuesday, October 2, 2023
10:00 A.M. - 11:30 A.M.
Register here

Wednesday, December 13, 2023
10:00 A.M. - 11:30 A.M.
Register here

Topics include:

• Understanding labor market attachment
• Details on benefit periods and how benefit rates are calculated
• The importance of items such as the degree of disability and the Carrier Continue Payments (CCP) order
• How advocates can help workers and comply with privacy provisions
• The Workers’ Compensation Board’s New York Medical Treatment Guidelines, and more!

 

Municipal and School Audits released by New York State Comptroller Thomas P. DiNapoli

On September 8, 2023 New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access both summary and the complete audit report.

City of Niagara Falls – Sexual Harassment Prevention (SHP) Training (Niagara County)

SHP training was not provided to all employees and elected officials. Of the 65 total individuals auditors tested (59 selected employees and all six elected officials), 14 employees, or 24% of employees tested, and five elected officials did not complete the annual SHP Training. Additionally, the fire department cancelled the annual SHP Training for all 131 of its uniformed personnel.

 

City of Watertown – Sexual Harassment Prevention Training (Jefferson County)

SHP training was provided to employees and elected officials. However, there was a general lack of monitoring to ensure the SHP training was completed by all employees and the city’s training completion records were unreliable. As a result, officials have no assurance that all individuals who should have completed the 2021 SHP training did so.

 

Cold Spring Harbor Central School District – Capital Assets (Suffolk and Nassau Counties)

District officials did not properly record, tag and account for capital asset purchases. As a result, the district has an increased risk that its assets could be lost, misused or stolen. Auditors found: the assistant superintendent for business did not maintain an inventory of capital assets that had a minimum value of $500; 67 capital assets totaling $171,438 were not properly identified or recorded; and the purchasing department did not prepare and distribute unique identification tags for capital assets that were purchased during the audit period.

 

Eldred Central School District – Sexual Harassment Prevention Training (Orange and Sullivan Counties)

SHP training was not provided to all employees or board members and because the district’s training completion records are unreliable, officials have no assurance all individuals required to complete the 2021 SHP training did so. Additionally, the district excluded new hires, and per diem employees from SHP training.

 

Kiryas Joel Village Union Free School District – Network User Account and Shared Network Folder Access (Orange County)

District officials did not adequately secure user account access to the network and shared network folders to help safeguard personal, private and sensitive (PPSI) information. As a result, there is an increased risk of unauthorized access to the network and PPSI stored on shared network folders. Auditors found that officials did not: disable 35 unnecessary former employee shared and service network user accounts, which comprise 11% of the district’s enabled accounts; adequately secure shared network folder access, resulting in users having unnecessary access to multiple forms of PPSI in eight shared folders; or maintain a data inventory to properly protect information technology resources, including data containing PPSI.

 

Lansing Fire District – Investment Program (Tompkins County)

Auditors found the board of fire commissioners did not develop and adopt a comprehensive written investment policy as required by state law. The district earned interest totaling approximately $9,000 from its savings account, which had an average daily balance of approximately $3.8 million during the audit. However, the district could have earned approximately $70,000, or $61,000 more had officials used other available investment options. Officials did not consider other legally permissible investment options or formally solicit interest rate quotes that may have resulted in higher interest earnings.

 

Persistence Preparatory Academy Charter School – Credit Cards (Erie County)

Credit card charges reviewed by auditors were not properly approved or adequately supported, and nearly all the charges lacked support to show they were for a valid school purpose. Auditors reviewed transactions totaling $117,567 and determined that almost 98% lacked documentation to demonstrate the charge’s necessity or the school-related purpose of the charge. For example, charges totaling $22,276 included grocery, alcohol and restaurant purchases, and food purchases for “going away parties,” a teacher’s bridal shower and staff holiday parties. Additionally, the board treasurer did not review credit card charges in a timely manner.

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PURSUE A CAREER IN PUBLIC SERVICE AS AN ATTORNEY WITH THE STATE OF NEW YORK

NEW YORK STATE DEPARTMENT OF CIVIL SERVICE ANNOUNCES ONLINE CIVIL SERVICE EXAMINATION NOW AVAILABLE TO PURSUE PUBLIC SERVICE CAREERS AS ATTORNEYS
The New York State Department of Civil Service (DCS) has announced that individuals interested in a career as an attorney in New York State public service can now apply and complete the Legal Specialties exam online. The civil service exam is held continuously and is used to fill multiple attorney titles across New York State agencies.  Click Here for more information. People interested in being considered for attorney positions within state government must first meet the minimum qualifications for the exam, which requires candidates to be a graduate of an accredited law school with an LLB or JD degree or be eligible to take the New York State Bar exam. All applicants who meet the minimum qualifications should apply for and complete the exam to be considered for available positions. The online exam will require candidates to provide information about their training and experience with an online questionnaire that is completed and submitted by the candidate. Candidates should be prepared to provide detailed information on their education, work experience, dates of employment, and supervisor contact information to answer the questions completely. The exam is used to fill the following titles at multiple agencies: Senior Attorney Senior Attorney (Realty) Senior Attorney (Financial Services) Hearing Officer Motor Vehicle Referee/Motor Vehicle Referee (Spanish Language) Unemployment Insurance Referee/Unemployment Insurance Referee (Spanish Language) Several positions within the Legal Specialties Traineeship All positions include generous benefits including paid leave, health benefits, and retirement plans, and telecommuting options may be available to employees in these titles who meet certain criteria.   It is estimated that approximately 100 attorney positions will be filled statewide over the next year. Click Here to learn more about working for the State of New York and how to take the next step in pursuing a rewarding career in public service. As part of the launch of the Legal Specialties exam, New York State has launched a statewide social media campaign, which will include videos and web content to help attract candidates to apply for the exam. Campaign content and additional information and resources to help candidates complete the exam is available at www.cs.ny.gov/legal-specialties.

Governor Kathy Hochul signs legislation to enhance state and municipal opportunities for employment in the civil service

On September 7, 2023, Governor Kathy Hochul signed two pieces of legislation to expand access to employment opportunities in civil service.

One, Chapter 358 of the Law of 2023, requires the Department of Civil Service and municipal civil service commissions to provide civil service examination announcements to local Boards of Cooperative Educational Services (BOCES), school districts, public colleges, public universities, local social services districts, and, to the extent practicable, job training programs.

The other, Chapter 356 of the Laws of 2023, provides that time spent as a provisional employee be counted towards satisfying an employee's probationary period upon receiving a permanent appointment in the same title. The bill provides "Notwithstanding  the foregoing or any law or rule to the contrary, any person appointed provisionally in accordance with section sixty-five of this title who receives a permanent appointment to the same title shall have all time spent as a provisional appointment credited to any  probationary term that is required upon permanent appointment to a position."

 

Determining the effective date of resignations submitted by public officers of the State of New York and of its political subdivisions

On September 7, 2023, Albany Times Union Columnist Chris Churchill reported that Roman Catholic Diocese of Albany Bishop Edward Scharfenberger "submitted [his resignation] to the Vatican on the occasion of Scharfenberger's May 29 birthday ... reflected that bishops are required to submit their resignation when they turn 75."

Mr. Churchill opined, "Pope Francis can now accept Scharfenberger's resignation and name a replacement. But that isn't expected, principally for two reasons: One, Scharfenberger doesn't want to step down just yet, and, two, it is likely the pope will want the bishop to see out an ongoing Chapter 11 bankruptcy process initiated in response to Child Victims Act claims."

Such is not the case with respect to a resignation submitted by a public officer of the State of New York or a by a public officer of a political subdivision of the State of New York as §31.2 of the New York State Public Officers Law, Resignations,* provides as follows:

"Every resignation shall be in writing addressed to the officer or body to whom it is made. If no effective date is specified in such resignation, it shall take effect upon delivery to or filing with the proper officer or body. If an effective date is specified in such resignation, it shall take effect upon the date specified, provided however, that in no event shall the effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing; except that the effective date of the resignation of a judge or justice of the unified court system may be up to ninety days subsequent to the date on which such resignation is delivered or filed. If a resignation specifies an effective date that is more than thirty days subsequent to the date of its delivery or filing, or more than ninety days subsequent thereto where such resignation is that of a judge or justice, such resignation shall take effect upon the expiration of thirty days from the date of its delivery or filing, or upon the expiration of ninety days therefrom, as appropriate."

The withdrawal of a resignation delivered to the appropriate officer or body typically requires the approval of the appointing authority or body, as the case may be.

* Other state statutes provide for procedures to be followed with respect to the submission of a resignation by particular public officers. In addition, rules and regulations, and provisions set out in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, the so-called Taylor Law, may control with respect to resignations of employees of the State as the employer or employees of a political subdivision of the State as the employer. Further, although not all public employees in the civil service are public officers, all public officers in the civil service are public employees.