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Administrative Law Judge finds no ?exceptional circumstances? justifying agency placing its employee on §72 leave involuntarily

Administrative Law Judge finds no ?exceptional circumstances? justifying agency placing its employee on §72 leave involuntarily
New York City Administration for Children?s Service v J.M., OATH Index #3350/09

OATH Administrative Law Judge Tynia Richard found that written complaints sent to various agencies, without threats or inappropriate language, were insufficient to prove that special officer J.M. was mentally unfit to perform the duties of her position within the meaning of Civil Service Law §72.

The ALJ recommended J.M.?s immediate return to duty, plus back pay and restoration of leave credits,* as the employer did not show there were ?exceptional circumstances? requiring immediate placement of J.M. on involuntary leave pursuant to §72.5 of the Civil Service Law.

Judge Richard said that J.M.?s should receive back pay and leave credits retroactive to the date J.M. was scheduled to return to work from medical leave.

Harvey Randall Comments: Civil Service Law §72 authorizes leaves of absence for State and municipal employees who suffer an "ordinary disability," i.e., a disability unrelated to any occupational injury or disease.**

§72.5 provides that an employee may be placed on an involuntary leave of absence in the event the appointing authority ?determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations.?

In such cases the employee is entitled to use all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit in order to remain on the payroll. If the employee declines to use his or her accumulated leave credits in order to remain on the payroll, or having elected to remain on the payroll, exhausts his or her accumulated leave credits, he or she is placed in leave without pay status.

In the event the individual is ultimately determined to have been physically or mentally fit to perform the duties of his or her position at the time he or she was placed on §72 leave involuntarily, he or she is to 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 to him or her. The amount of "lost wages" to be reimbursed to the individual is to be adjusted to reflect any compensation he or she may have earned in other employment or occupation and any unemployment insurance benefits he or she may have received during the relevant period.

If individual has been on §72 leave continuously for one year or longer, the appointing authority may, as a matter of discretion, terminate the individual from his or her position pursuant to §73 of the Civil Service Law.***

However, a "§73 termination" is not a ?pejorative? dismissal and the individual may apply for reinstatement to his or her former position within one year after the termination of the underlying disability.

Further, in the event the individual's former position is not available, he or she may be appointed to another, appropriate, position, or to an appropriate position in a lower grade. Failing that, the individual?s name is placed on a preferred list.

If the individual's name is placed on a preferred, he or she will be eligible for reinstatement to an appropriate position in his or her former agency from the preferred list for four years.

* Although §72 leave is "leave without pay," the employee may used available leave credits to remain on the payroll while on such leave to the extent that he or she has vacation credits, sick leave or other leave accruals that may be charged during his or her absence. In some instances, "leave bank credits" may be available to the individual for this purpose upon the exhaustion of his or her leave credits.

** In contrast, Civil Service Law §71 -- Workers' Compensation Leave -- authorizes leaves of absences for State and municipal employees that are required as a result of an occupational injury or disease as defined in the Workers' Compensation Law.

*** The appointing authority may, as a matter of discretion, terminate an individual absent on §71 Workers? Compensation Leave for a cumulative period of one year or more.

The decision is posted on the Internet at: http://archive.citylaw.org/oath/09_Cases/09-3350.pdf

Full post as published by New York Public Personnel Law on May 27, 2010 (boomark / email).