New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle K - New York State Police › Part 488 - Leave For Ordinary Disability › Section 488.1 - Leave for ordinary disability

Current through Register Vol. 46, No. 28, July 10, 2024
(a) All sworn members of the New York State
				Police, regardless of rank or assignment, must at all times be capable of
				strenuous physical duty and must be physically and mentally fit to perform the
				duties required of members of the State Police.
(b) Notwithstanding any other provisions of
				this section, if the superintendent or his designee reasonably determines that
				the continued presence of a member on the job represents a potential danger to
				persons, including such member, or property, or would unreasonably interfere
				with operations, the superintendent may immediately place such member on
				involuntary leave of absence. The employee shall be entitled to draw all
				accumulated unused sick leave, vacation, and other time allowances to which he
				or she is entitled. As soon as possible after the employee is involuntarily
				placed on leave of absence, the superintendent shall proceed as provided in
				subdivision (c) of this section. If the superintendent or his designee
				thereafter finally determines the member is physically and mentally fit to
				perform the duties of a member of the New York State Police, the member shall
				be restored to his or her position and any leave credits or salary lost because
				of such involuntary leave of absence shall be restored to the member.
(c) When, in the judgment of the
				Superintendent of State Police or his designee, a member of the New York State
				Police is unable to perform the duties required of all members of the State
				Police by reason of a physical or mental disability, the superintendent or his
				designee shall follow the procedures as set out below:
(1) Step I. The superintendent or his
				designee may require such member to undergo one or more medical, psychological
				or psychiatric evaluations conducted by one or more medical personnel selected
				and paid by the Division of State Police. Prior to such medical, psychological
				or psychiatric evaluations, the members shall be provided with a written
				statement of the basis for the judgment of the superintendent that the member
				is unable to perform the duties required of members of the New York State
				Police.
(2) Step II. Upon review of
				the reports of such medical, psychological or psychiatric evaluations, and
				other available information, the superintendent or his designee shall determine
				whether such member should be placed on leave of absence. If the superintendent
				or his designee determines that the member shall be placed on leave of absence,
				the member shall be so notified in writing. The notice of leave of absence
				shall contain a written statement of the reasons therefor, shall specify the
				date on which the leave is to commence and shall advise the member of his or
				her rights as provided in this section. The notice shall be served in person or
				sent by first class mail, return receipt requested, to the member at his last
				known address.
(3) Step III. A
				member so placed on leave of absence may, within 10 business days from service
				of such notice, object to the imposition of the proposed leave of absence and
				request a hearing. Such request for a hearing shall be in writing and forwarded
				to the superintendent through channels. Failure to file a timely request shall
				constitute waiver of the right to a hearing. Upon receipt of a written request
				for a hearing, the superintendent shall provide the member, through his or her
				legal representative, if any, copies of diagnoses, test results, recorded
				observations, or other data supporting the proposed leave of absence,
				imposition of which will be held in abeyance pending final determination by the
				superintendent or his designee after a hearing except under circumstances as
				provided in subdivision (b) of this section.
(4) Step IV. Upon timely request, the
				superintendent shall afford the member a hearing as soon as practicable after
				receipt of the request for a hearing. The hearing shall be held before a State
				Police commissioned officer holding the rank of staff inspector or higher, such
				hearing officer to be chosen by the superintendent or his designee. In all
				cases, the hearing officer shall be of higher rank than the member requesting
				the hearing. The member may be represented at the hearing by counsel or a
				representative of a certified or recognized employee organization. The employee
				shall be entitled to reasonable time to obtain said representation. The member
				may present medical experts and other witnesses or evidence. The Division of
				State Police shall have the burden of proving unfitness for duty by substantial
				evidence. Compliance with technical rules of evidence shall not be required.
				Testimony at the hearing shall be recorded. The hearing officer shall make a
				written report of his findings and recommendations, which shall be referred to
				the superintendent, together with the record, for final review and decision. At
				the conclusion of the hearing, the member may request to have the final
				decision of the superintendent rendered without the transcript of the
				testimony. Such request shall be on-the-record and in writing, and it shall be
				restricted to waiver of the requirement that the transcript of testimony be
				available to the superintendent before his final decision. If such member
				should subsequently petition for a judicial review of the superintendent's
				decision under article 78 of the Civil Practice Law and Rules (CPLR), he shall
				be furnished with a copy of the transcript of testimony without
				charge.
(5) Step V. The
				superintendent or his designee shall render a final written determination as
				soon as practicable after receipt of the hearing officer's report and shall
				provide the member with a copy of such determination. The superintendent may
				either uphold the original proposed notice of leave of absence, withdraw such
				notice, or modify the notice as appropriate. An employee placed on leave of
				absence pursuant to these procedures shall be entitled to draw all accumulated,
				unused sick leave, annual leave, personal leave, or other time allowances
				standing to his or her credit.