Labor & Employment Law

Employee on medical leave terminated because of an unacceptable personal risk to himself and safety concerns for others

By Harvey Randall, Esq.

Employee on medical leave terminated because of an unacceptable personal risk to himself and safety concerns for others
Matter of Wells v Johnson, 2008 NY Slip Op 03540, Decided on April 24, 2008, Appellate Division, Third Department

Michael K. Wells, a Youth Division Aide was employed by the Office of Children and Family Services [OCFS] as a Youth Division Aide 3 suffered a non-work-related heart condition which necessitated heart surgery. As a result of his medical condition, Wells will be required to take a daily maintenance dose of anticoagulant medication for life.

When Wells told OCFS he wished to return to work, it sent Wells for a medical evaluation pursuant to 4 NYCRR 21.3(e) to determine whether he was capable of resuming his duties as a Youth Division Aide. Two physicians concluded that Wells was medically unfit to perform all the requisite job duties. Accordingly, OCFS rejected his request for reinstatement to his former position. Subsequently OCFS terminated Wells pursuant to the provisions of Civil Service Law §73. §73 authorizes the appointing authority, as a matter of discretion, to terminate an individual who has been continuously absence from work on ?§72 leave? for one-year or longer as a result of a non-work-related injury, disease or medical condition.

The Appellate Division rejected Wells? challenge to OCFS?s decision, holding that the record provides ?substantial evidence? to support OCFS?s decision to terminate Wells from his position.

According to the ruling, the medical testimony established that Wells? life-long anticoagulant therapy placed him at an increased risk of serious bleeding or death, even from minor traumas. As his duties as a Youth Division Aide specifically requires him to physical restrain combative youths, he was exposed to injuries that can, and do, occur in the performance of his duties. Significantly, the decision notes that the two physicians concluded that ?Wells was medically unfit to return to his position in light of the unacceptable personal risk to himself and safety concerns for others.?

Full post as published by New York Public Personnel Law on April 28, 2008 (boomark / email).