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December 28, 2011
NY Workers Put on Involuntary Leave, Denied Hearing

Two state workers on voluntary medical leave attempted to return to work, but the departments that employed them refused and later terminated them.

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What happened. “Matthew” worked as a civil engineer for the New York State Department of Transportation (DOT), and “Joyce” was a Department of Labor (DOL) employee. They both took a voluntary leave of absence due to illness and sought to return to work after an unspecified amount of time. Their treating physicians provided them with the necessary certification, stating that they were fit to return to duty.

DOT and DOL required Matthew and Joyce, respectively, to be medically examined by a state-affiliated physician before returning to work. Both were found to be unfit to return to duty, and they were placed on involuntary leave. They sought a hearing, under Civil Service Law Section 72, but the DOT and DOL denied those requests. The state agencies maintained that Sec. 72 was not relevant.

Eventually, Mathew and Joyce were terminated under Civil Service Law Sec. 73, which provides for termination of an employee when he or she is continuously absent from work for one year and is unable to perform the duties of the job.

Matthew and Joyce challenged their placement on involuntary leave without having been provided a hearing. In separate decisions, the Supreme Court, Albany County, granted their petitions. However, the Appellate Division reversed and dismissed, reasoning that Sec. 72 applies only to employees put on involuntary leave, while the collective bargaining agreement and 11 NYCRR 21.3 apply to those on voluntary leave. The case proceeded to the Court of Appeals.

What the court said. The court said the judgment of the Supreme Court should be reinstated, explaining that Sec. 72 “provides certain procedural safeguards to a public employee when placed on an involuntary leave of absence,” including the right to request a hearing. The court said there is “no indication that the Legislature intended to make a distinction between an employee who is placed on involuntary sick leave from the job site and one that is placed on such leave from a voluntary absence.” Matter of Sheeran v. New York State Department of Transportation, New York Court of Appeals, 2011 NY Slip Op 08229 (11/17/11).

Point to remember: Public employers are bound by Civil Service Law Sec. 72 to afford certain procedural safeguards to employees when placed on an involuntary leave of absence and to employees who are prevented from returning to work after a voluntary leave of absence. Those safeguards include an employee’s right to request a hearing on the decision within a certain timeframe.


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