NY Civ Serv L § 72 (2021)
2021 New York Laws CVS - Civil Service Article 5 - Personnel Changes Title A - Transfers: Reinstatements 72 - Leave for Ordinary Disability.

§ 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.