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Placement on Section 72 leave

Placement on Section 72 leave
Petix v NYS Off. of Mental Health, 291 A.D.2d 846

The Petix decision, a case involving the application of Section 72.5 of the Civil Service Law [CSL], provides an opportunity to explore this and a number of other facets of Section 72, Leave for Ordinary Disability.*

CSL Section 72.5 authorizes the immediate placement of an individual 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.**

Gerard Petix a Senior Physical Therapist employed at the Office of Mental Health's Rochester Psychiatric Center [RPC], was placed on an immediate involuntary leave of absence pursuant to CSL Section 72.5. Petix objected to his placement of Section 72.5 leave and asked for, and was provided with, a hearing in accordance with the procedures set out in CSL Section 72.1.

A hearing was conducted. RPC adopted the recommendations of the Section 72.1 Hearing Officer and found that Petix was unfit to perform the duties of his position on the date he was placed on such leave. In effect, the hearing officer found that RPC had "probable cause" to place Petix on involuntary leave on that date.

RPC also adopted a hearing officer's findings and recommendation that Petix was physi­cally and mentally able to return to work in late February. Petix was actually al­lowed to return to work in April. RPC restored all the holiday, vacation, and sick leave credits he used from the date of the February determination until the date on which he actually was permitted to return to work in April.

Petix also asked RPC to restore the leave credits he used while he was on the involuntary Section 72.5 leave of absence from October until late February the following year.

When his request was denied, he filed a petition pursuant to Article 78 of the Civil Practice Law and Rules seeking a court order compelling RPC to restore those leave credits as well. Supreme Court dismissed Petix's petition based on its reading of CSL Section 72.5.***

The Appellate Division sustained the lower court's ruling. The court rejected Petix's theory that he was entitled to restoration of the sick leave credits that he used during the entire period of the involuntary leave of absence because RPC "finally determined" that he was fit to return to work in late February. Not so, said the court. The Appellate Division noted that Petix was allowed to return to work because of an improvement of his condition [in late February] and not because it was `finally determined' that he was fit to perform his duties" from October to late February the following year.

In contrast, had the hearing officer determined that RPC did not have "probable cause" to place Petix on involuntary leave pursuant Section 72.5 in October, Petix would have been entitled to all leave credits he used since that date.

The "standard Section 72 procedure" is triggered by the appointing officer's determina­tion that the individual is physically or mentally unable to perform his or duties and should be placed on leave of absence. However CSL Section 72.1 requires completing a number of procedural steps before the individual may actually be placed on Section 72 leave over his or her objections.

In contrast, Section 72.5 essentially sets out an exception to the "standard procedure" that allows it to be truncated only in the event the appointing authority determines that there is probable cause to believe that the continuation of the individual on the job poses a danger to persons, property or the agency's operation.

The "standard procedure" followed under Section 72 may be summarized as follows:

1. The appointing authority determines than an employee is unable to perform the duties of his or her position by reason of an ordinary disability.

2. The appointing authority requires such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or munici­pal commission having jurisdiction.

3. The appointing authority provides the employee and the civil service department or commission, in writing, the facts that constitute the basis for the judgment that the employee is not fit to perform the duties of his or her position prior to the medical examination.

4. If the medical officer certifies that the employee is not physically or mentally fit to perform the duties of his or her position, the appointing authority notifies the em­ployee of any proposed Section 72 leave and the proposed date on which such leave is to commence.

5. The employee is also advised of his or her right to object to his or her placement on the proposed Section 72 leave of absence and to request a hearing.

6. If the employee requests a hearing, the appointing authority is to give the employee a hearing within 30 days of the receipt of the request. The appointing authority is also required to provide the employee and the employee's personal physician or authorized representative, with copies of all diagnoses, test results, observations and other data supporting the appointing authority's decision.

7. The employee is not to be placed on leave until a final determination is made by the appointing authority after the hearing is held.

As is typical in administrative actions of this type, the appointing authority has the burden of proof and must provide the evidence that the employee is mentally or physically unfit to perform his or her duties.

Following the receipt of the hearing officer's findings and recommendations, the ap­pointing authority may decide to (1) uphold the original proposed notice of leave of absence, (2) withdraw such notice or (3) modify the notice as may be appropriate.

If the final determination is to place the individual on Section 72 leave, the employee is to be advised of his or her right to appeal the determination to the civil service commis­sion having jurisdiction as provided by CSL Section 72.3.

Another section of the Civil Service Law may become relevant in connection with ab­sences pursuant to Section 72; CSL Section 73.

Section 73 provides the appointing officer with the discretion to terminate an employee who has been placed on Section 72 leave once the employee has been continuously absent from and unable to perform the duties of his or her position for one year or more.

In contrast, an individual who has been placed on Workers' Compensation Leave pursuant to CSL Section 71 may be terminated after being on such leave for a cumulative period of one year at the discretion of the appointing authority.

An employee terminated from employment pursuant to Section 73 is allowed one year after the termination of his or her disability to apply for reinstatement to his or her former position. This request is to be submitted to the civil service department or munici­pal commission having jurisdiction over the position he or she last for a medical exami­nation.

If the employee is found physically and mentally fit to perform the duties of his or her former position, he or she is to be reinstated to the position, if it is vacant. If there is no vacancy available, he or she is to be appointed to a vacancy in a similar position or to a vacant position in a lower grade in the same occupational field in his former department or agency.

If there is no suitable position available, the individual's name is place on a preferred list for his former position in his former department or agency for a period of four years. Further, if the individual is reinstated to a position in a grade lower than that of his or her former position, his or her name is placed on a preferred list for the former position, or any similar position, in his or her former department or agency.

* Section 72 applied in the event an employee suffers an "ordinary disability," i.e., a disability unrelated to any occupational injury or disease. Civil Service Law Section 71 -- Workers' Compensation Leave -- provides for leaves of absences required as a result of an occupational injury or disease as defined in the Workers' Compensation Law.

** Section 72 leave is leave without pay. However, an employee placed on a Section 72.5 involuntary leave of absence 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.

*** Section 72.5, in pertinent part, provides that, if "an employee is finally determined not to be physically or mentally unfit to perform the duties 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 to him or her".

Full post as published by New York Public Personnel Law on April 12, 2010 (boomark / email).