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This entry was published on 2014-09-22
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SECTION 72
Leave for ordinary disability
Civil Service (CVS) CHAPTER 7, ARTICLE 5, TITLE A
§ 72. Leave for ordinary disability. 1. When in the judgment of an
appointing authority an employee is unable to perform the duties of his
or her position by reason of a disability, other than a disability
resulting from occupational injury or disease as defined in the workers'
compensation law, the appointing authority may require such employee to
undergo a medical examination to be conducted by a medical officer
selected by the civil service department or municipal commission having
jurisdiction. Written notice of the facts providing the basis for the
judgment of the appointing authority that the employee is not fit to
perform the duties of his or her position shall be provided to the
employee and the civil service department or commission having
jurisdiction prior to the conduct of the medical examination. If, upon
such medical examination, such medical officer shall certify that such
employee is not physically or mentally fit to perform the duties of his
or her position, the appointing authority shall notify such employee
that he or she may be placed on leave of absence. An employee placed on
leave of absence pursuant to this section shall be given a written
statement of the reasons therefor. Such notice shall contain the reason
for the proposed leave and the proposed date on which such leave is to
commence, shall be made in writing and served in person or by first
class, registered or certified mail, return receipt requested, upon the
employee. Such notice shall also inform the employee of his or her
rights under this procedure. An employee shall be allowed ten working
days from service of the notice to object to the imposition of the
proposed leave of absence and to request a hearing. The request for such
hearing shall be filed by the employee personally or by first class,
certified or registered mail, return receipt requested. Upon receipt of
such request, the appointing authority shall supply to the employee, his
or her personal physician or authorized representative, copies of all
diagnoses, test results, observations and other data supporting the
certification, and imposition of the proposed leave of absence shall be
held in abeyance until a final determination is made by the appointing
authority as provided in this section. The appointing authority will
afford the employee a hearing within thirty days of the date of a
request by the employee to be held by an independent hearing officer
agreed to by the appointing authority and the employee except that where
the employer is a city of over one million in population such hearing
may be held by a hearing officer employed by the office of
administrative trials and hearings. If the parties are unable to agree
upon a hearing officer, he or she shall be selected by lot from a list
of persons maintained by the state department of civil service. The
hearing officer shall not be an employee of the same appointing
authority as the employee alleged to be disabled. He or she shall be
vested with all of the powers of the appointing authority, and shall
make a record of the hearing which shall, with his or her
recommendation, be referred to the appointing authority for review and
decision and which shall be provided to the affected employee free of
charge. A copy of the transcript of the hearing shall, upon request of
the employee affected, be transmitted to him without charge. The
employee may be represented at any hearing by counsel or a
representative of a certified or recognized employee organization and
may present medical experts and other witnesses or evidence. The
employee shall be entitled to a reasonable period of time to obtain such
representation. The burden of proving mental or physical unfitness shall
be upon the person alleging it. Compliance with technical rules of
evidence shall not be required. The appointing authority will render a
final determination within ten working days of the date of receipt of
the hearing officer's report and recommendation. The appointing
authority may either uphold the original proposed notice of leave of
absence, withdraw such notice or modify the notice as appropriate. In
any event, a final determination of an employee's contest of a notice of
leave shall be rendered within seventy-five days of the receipt of the
request for review. An employee on such leave of absence shall be
entitled to draw all accumulated, unused sick leave, vacation, overtime
and other time allowances standing to his or her credit. The appointing
authority in the final determination shall notify the employee of his or
her right to appeal from such determination to the civil service
commission having jurisdiction in accordance with subdivision three of
this section.

2. An employee placed on leave pursuant to subdivision one of this
section may, within one year after the date of commencement of such
leave of absence, or thereafter at any time until his or her employment
status is terminated, make application to the civil service department
or municipal commission having jurisdiction over the position from which
such employee is on leave, for a medical examination by a medical
officer selected for that purpose by such department or commission. If,
upon such medical examination, such medical officer shall certify that
such employee is physically and mentally fit to perform the duties of
his or her position, he or she shall be reinstated to his or her
position.

3. An employee who is certified as not physically or mentally fit to
perform the duties of his or her position and who is placed on leave of
absence pursuant to subdivision one of this section, or who is denied
reinstatement after examination pursuant to subdivision two of this
section, may appeal from such determination to the state or municipal
civil service commission having jurisdiction over his or her position.
Such employee and appointing officer or their representatives shall be
afforded an opportunity to present facts and arguments in support of
their positions including medical evidence at a time and place and in
such manner as may be prescribed by the commission. Provided however,
that in considering appeals pursuant to subdivision two of this section
where a hearing has not been held within nine months from the date of
notification pursuant to subdivision one of this section, the commission
shall designate an independent hearing officer who shall hold a hearing
and report thereon. The commission shall make its determination on the
basis of the medical records and such facts and arguments as are
presented to it. The final determination of the commission shall be
binding on both the employee and the appointing authority; provided,
however, that an employee or appointing authority may seek review of a
final determination of a commission in accordance with the provisions of
article seventy-eight of the civil practice law and rules.

4. If an employee placed on leave pursuant to this section is not
reinstated within one year after the date of commencement of such leave,
his or her employment status may be terminated in accordance with the
provisions of section seventy-three of this article.

5. Notwithstanding any other provisions of this section, if the
appointing authority determines that there is probable cause to believe
that the continued presence of the employee on the job represents a
potential danger to persons or property or would severely interfere with
operations, it may place such employee on involuntary leave of absence
immediately; provided, however, that the employee shall be entitled to
draw all accumulated unused sick leave, vacation, overtime and other
time allowances standing to his or her credit. If such an employee is
finally determined not to be physically or mentally unfit to perform the
duties of his or her position, he or she shall be restored to his or her
position and shall have any leave credits or salary that he or she may
have lost because of such involuntary leave of absence restored to him
or her less any compensation he or she may have earned in other
employment or occupation and any unemployment benefits he or she may
have received during such period.