New York Codes, Rules and Regulations › Title 22 - JUDICIARY › Subtitle A - JUDICIAL ADMINISTRATION › Chapter I - Standards and Administrative Policies › Subchapter A - Rules Of The Chief Judge › Part 25 - Career Service › Section 25.27 - Incapacitated employees

Current through Register Vol. 46, No. 28,
					 July 10, 2024
(a) When there is reason to believe that
					 an employee to whom the disciplinary procedures of section
					 25.29 of this Part apply is
					 physically or mentally disabled from performing, with or without reasonable
					 accommodation, the essential functions of his or her position, the appropriate
					 administrative authority may require such employee to undergo a physical or
					 psychiatric examination at the expense of the State, to be conducted by a
					 medical officer selected by the Chief Administrator, to establish whether he or
					 she is able to perform, with or without reasonable accommodation, the essential
					 functions of his or her position or whether his or her continued presence on
					 the job creates a significant risk to the health or safety of the individual or
					 of others that cannot be eliminated with reasonable accommodation. For purposes
					 of this section, the appropriate administrative authority shall be the
					 designating authority set forth in section
					 25.29(b) of this
					 Part. If, upon such medical examination, the medical officer certifies that
					 either condition exists, the employee shall be placed on leave of absence
					 without pay subject to the provisions of subdivision (c) of this section. An
					 employee placed on such leave shall be allowed to draw accumulated and unused
					 sick leave, annual leave, compensatory time, overtime credits and other time
					 allowances standing to his or her credit prior to being placed on such leave.
					 An employee who chooses to draw his or her accumulated leave credits under this
					 section shall cease to earn and accrue sick and annual leave credits during
					 that period.
(b) When
					 an employee who is not permanently incapacitated from performing the duties of
					 his or her position has been absent from and unable to perform the duties of
					 his or her position by reason of sickness or disability either for a
					 consecutive period of one year or more or for a cumulative total of 250
					 workdays or more within a period of 24 consecutive calendar months, and who
					 reasonably cannot be expected to be able to resume performing, with or without
					 reasonable accommodation, the essential functions of his or her position
					 shortly thereafter, his or her employment may be terminated by the appropriate
					 administrative authority and the position may be filled by a permanent
					 appointment.
(c)
					 Prior to being placed on leave pursuant to subdivision (a) of this section, or
					 terminated pursuant to subdivision (b), an employee shall be provided with
					 written notice thereof, including written notice of the facts relied on
					 therefor and written notice of the employee's right to contest the
					 determination and of the procedures for doing so. Such notice shall be served
					 in person or by first class, registered or certified mail, return receipt
					 requested, upon the employee. If such person elects to contest the
					 determination, he or she shall file a written request for a hearing with the
					 appropriate administrative authority within 10 workdays from service of the
					 notice of the determination to be reviewed. 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 appropriate
					 administrative authority shall supply to the employee, or his or her personal
					 physician or authorized representative, copies of all diagnoses, test results,
					 observations and other data supporting the determination, and imposition of the
					 leave or termination shall be held in abeyance until a final determination is
					 made by the appropriate administrative authority as provided in subdivision (d)
					 of this section.
(d)
					 A hearing shall be held by a hearing officer designated for that purpose by the
					 appropriate administrative authority. The hearing officer shall be vested with
					 all the powers of the administrative authority and shall make a record of the
					 hearing which shall, with his or her recommendation, be referred to the
					 administrative authority for review and decision and which shall be provided to
					 the employee free of charge. The employee shall, upon request, receive a copy
					 of the transcript of the hearing without charge. The employee may be
					 represented at the hearing by counsel or an authorized representative and may
					 present medical experts and other witnesses or evidence. The burden of proving
					 mental or physical unfitness shall be upon the administrative authority.
					 Compliance with technical rules of evidence shall not be required. The
					 administrative authority shall render a final determination and may either
					 uphold the original notice of leave of absence, withdraw such notice or modify
					 the notice as appropriate. A final determination of an employee's request for
					 review shall contain notice to the employee of his or her right to appeal from
					 such determination and of the procedures for perfecting such appeal.
(e) If the employee elects to
					 appeal, he or she shall make application to the Chief Administrator. The
					 employee shall be afforded an opportunity to present facts and arguments,
					 including medical evidence, in support of his or her position at a time and
					 place and in such manner as may be prescribed by the Chief Administrator. The
					 Chief Administrator shall make a determination on the basis of the medical
					 records and such facts and arguments as are presented.
(f) An employee placed on leave
					 pursuant to this section may, within one year of the commencement of such
					 leave, make application to the appropriate administrative authority for a
					 medical examination to be conducted by a medical officer selected for the
					 purpose by the Chief Administrator. If, upon such medical examination, the
					 medical officer shall certify that the employee is physically and mentally fit
					 to perform, with or without reasonable accommodation, the essential functions
					 his or her former position, he or she shall be reinstated to the former
					 position, if vacant, or to a vacancy in a similar position or a position in a
					 lower title in the same occupational field in his or her former promotion unit.
					 If no appropriate vacancy shall exist to which such reinstatement may be made,
					 or if the work load does not warrant the filing of such vacancy, the name of
					 the employee shall be placed on a preferred list for his or her former position
					 in his or her former promotion unit, and the employee shall be eligible for
					 reinstatement in such former promotion unit from such preferred list for a
					 period of four years. In the event that the employee is reinstated in a
					 position in a title lower than that of his or her former position, his or her
					 name shall be placed on the preferred eligible list for the former position or
					 any similar position in such former promotion unit.
(g) An employee placed on leave
					 pursuant to this section who is not reinstated within one year after the date
					 of commencement of such leave, may be terminated by the appropriate
					 administrative authority and his or her position may be filled by permanent
					 appointment.
(h) An
					 employee whose employment status has been terminated pursuant to subdivision
					 (b) or (g) of this section may, within one year after the termination of his or
					 her disability, make application to the appropriate appointing authority for a
					 medical examination and subsequent reinstatement pursuant to the procedures and
					 conditions of subdivision (f) of this section.
(i) Where the continued presence of an
					 employee on the job creates a significant risk to the health or safety of the
					 individual or of others that cannot be eliminated with reasonable
					 accommodation, or would significantly interfere with operations, the
					 appropriate administrative authority may place such employee on an involuntary
					 leave of absence without pay immediately; provided, however, that the employee
					 shall be entitled to draw all accumulated and unused sick leave, annual leave,
					 compensatory time, overtime credits and other time allowances standing to his
					 or her credit. An employee so placed on leave shall thereafter be subject to
					 all of the procedures of this section for placement on leave of absence, except
					 that imposition of such leave shall not be held in abeyance pursuant to
					 subdivision (c) of this section. If it is finally determined pursuant to
					 subdivision (d) of this section, that the employee was physically and mentally
					 fit to perform, with or without reasonable accommodation, the essential
					 functions 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, 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.
(j)
					 Notwithstanding any other provision of this section, when an employee's
					 disability is of such a nature as to permanently incapacitate him or her from
					 the performance, with or without reasonable accommodation, the essential
					 functions of his or her position, his or her employment status may be
					 terminated once he or she has exhausted any workers' compensation leave to
					 which he or she may be entitled pursuant to section
					 24.5 of this Title, and his or her
					 position may be filled by a permanent appointment.
(k) This section shall not be
					 construed to require the extension of any employment beyond the time at which
					 it would otherwise terminate by operation of law, rule or regulation, nor shall
					 this section be deemed to modify or supersede any other provisions of law
					 applicable to the reemployment of persons retired from the public service on
					 account of disability.