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Termination for ?medical incompetence? based on 219 days of absence in a two-year period

Termination for ?medical incompetence? based on 219 days of absence in a two-year period
Dep't of Correction v. Duclet, OATH Index No. 972/09

Administrative Law Judge Faye Lewis found that New York City Correction Officer Ruby Duclet had been absent excessively since 2007, reporting sick 219 days during a two year, one month period.

The ALJ noted that it ?is well-settled law that an employee may be terminated for medical incompetence even where, as here, the absences were due to documented illnesses or work-related injuries,? citing Cicero v. Triborough Bridge & Tunnel Auth., 264 A.D.2d 334.

Given the number of absences and their continuing nature, ALJ Lewis recommended termination, but she urged the Department to consider proceeding with medical separation under Section 71 of the Civil Service Law instead of termination for incompetence under Section 75 of the Civil Service Law.

Section 71 of the Civil Service Law permits, but does not require, the appointing authority to terminate an employee absent as the result of a work-related injury after being on Workers? Compensation Leave for at least the minimum period set by law, provided the termination is not in retaliation for the employee having filing a workers? compensation claim [see Duncan v. New York State Developmental Center, 63 N.Y.2d 128].

Full post as published by New York Public Personnel Law on March 22, 2010 (boomark / email).