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Reinstatement from Section 71 leave for disability

By Harvey Randall, Esq.

Reinstatement from Section 71 leave for disability
Matter of James V. Sarto v Jeffrey A. Whittemore, et al, 43 A.D.3d 1343, Appellate Division, Fourth Department

James V. Sarto had sustained a work-related injury in August 2003 and was receiving disability benefits when he was terminated from his position in December 2004.

Sarto applied for reinstatement to his former position, asserting that he had sufficiently recovered from his injury to return to work. His request was denied and he sued.

The Appellate Division ruled that the Herkimer County Personnel Office and the City of Little Falls failed to follow the provisions of Civil Service Law Section 71 because they ?relied only on past medical records in refusing to reinstate [Sarto] to his former position.?

The court?s decision indicates that the County should have selected a medical officer to conduct a medical examination of Sarto ?in order to determine whether he ?is physically and mentally fit to perform the duties of his . . . former position? and, if so, to certify that he is physically and mentally fit to perform those duties.?

The County and the City also attempted to defend its action by contending that the issue of reinstatement is moot because Sarto?s former position had been filled. The Appellate Division dismissed that argument as being ?without merit.?

Citing Civil Service Law §71, the court indicated that an individual such as Sarto has significant statutory rights. In this instance, said the court, ?the law clearly provides that in the event no appropriate vacancy shall exist to which reinstatement may be made ? the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years.?

The Appellate Division remitted the matter to County and to the City ?for compliance with Civil Service Law §71.?

In a situation similar to Sarto?s, a Niagara County employee, Christine LaJoie, was placed on workers? compensation leave pursuant to Section 71 of the Civil Service Law. The County subsequently terminated her because ?she failed to return to work within one year of being placed on workers? compensation leave.?

In LaJoie v Niagara County, 659 NYS2d 622, the Appellate Division affirmed a Supreme Court?s ruling holding that LaJoie had been unlawfully terminated because the County neither advised her concerning the duration of her leave nor of the fact that she could be terminated if she did not return within one year.

However, in its ruling the Appellate Division said that the County had violated rules promulgated by the State Civil Service Commission and set out in the Official Compilation of Codes, Rules and Regulations, namely 4 NYCRR 5.9(b) and 4 NYCRR 21.8.

It should be noted, however, 4 NYCRR 1.1, Application of rules, states that ?Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service.?

As LaJoie was a county employee, it would appear that despite the Appellate Division?s holding to the contrary, LaJoie?s status was not controlled by the provisions of 4 NYCRR 5.9. Indeed, 4 NYCRR 5.9 provides:

5.9 Restoration to duty from workers' compensation leave, termination of service upon exhaustion or termination of workers' compensation leave, or reinstatement following termination due to disability arising from occupational injury or disease. (a) Applicability. These rules shall govern procedures for restoration to duty from Workers' Compensation Leave, ? for all State employees who are subject to section 71 of the Civil Service Law [emphasis supplied].

As to the Court?s reference to 4 NYCRR 21.8 in its decision, this part of 4 NYCRR sets out attendance rules for ?nonmanagerial/confidential employees in New York State departments and institutions.? So again, despite the court?s holding to the contrary, it seems clear that the State Commission?s Rules does not control in LaJoie?s case.

What rules might apply? In many instances the county or municipal civil service commission having jurisdiction has adopted rules applicable in situations involving Section 71 and Section 72 leaves and such rules would control with respect to the employees in that jurisdiction. In any event, set out below are some of the significant factors that should be considered in Section 71, 72 and 73 situations in the absence of rules promulgated by the responsible civil service commission or personnel officer.

Duration of Leave

One point that should be understood is that Section 71 does not require the termination of the individual because he or she has been absent for a cumulative perod one year or, in cases where the individual is absent because of an assault suffered in the course of his or her work, two years.

Although Section 71 authorizes the termination of an individual absent for more than one year due or two years, as the case may be, following a job related injury or disease, such action is at the discretion of the appointing authority. Notably, courts have ruled that the minimum one year of absence for the purposes of termination pursuant to Section 71 is ?cumulative? measured from the triggering event. This is in contrast to the period of absence that must be satisfied to trigger the termination of an individual absent on ?Section 72 leave? [absence due to an injury or disease that is not work-related]. Section 73 of the Civil Service Law provides for the termination of a person who has been continuously absent pursuant to Section 72 for a period of a year or longer.

Accordingly, an appointing authority can count all of the absences of a person on Section 71 leave related to the same work-connected injury or disease to determine the minimum statutory one-year [or two-year] period of absence mandated by Section 71, even if those absences are not continuous.

For instance, in the event an individual who returns to work after a workers? compensation leave absence must again go on Section 71 leave because of a relapse involving the same injury or disease, both the first and second absences may be counted in determining the one-year [or two-year] minimum leave period to which he or she is entitled under Section 71 before he or she may be terminated.

This is not the case in a Section 72 situation. Termination under Section 73 is not permitted until the individual is absent for an uninterrupted period of absence of at least one full year. Only then may the appointing authority elect to terminate the employee pursuant to Section 73.

This means that if an individual returns to work after being approved for a Section 72 leave and then goes on such leave again due to a relapse involving or related to the underlying illness or disease, he or she is entitled to a new, full, one-year period of leave. As is the case in Section 71, termination is not mandated in a Section 72/Section 73 situation; such termination is at the discretion of the appointing authority.

Reemployment rights

As to reemployment rights, both Sections 71 and 73 provide that an individual who has been terminated may apply for reinstatement to his or her former position within one year of the termination of his or her disability.

The point here is that the event that triggers the individual?s right to reinstatement is the date of the termination of the disability, not the date of ?termination? from his or her Section 71 or 72 leave.

This means that an individual may, years after being terminated pursuant to Section 71 or Section 73, as the case may be, exercise his or her right to reinstatement so long as he or she submits the request his or her reinstatement within one year after the termination of the disability.

If found qualified for reinstatement by the appropriate medical authority, he or she would be reinstated to his or her former position, if vacant, or to a vacant similar position, or to a lower grade position. If no suitable position is available, the individual?s name would be place on a preferred list.

Other considerations

An important case dealing with the issue of termination of an employee while he or she is on a Section 71 leave is Duncan v New York State Developmental Center, 63 NY2d 128; the seminal case concerning the issue of due process in connection with leaves pursuant to Section 72 is Laurido v Simon, 489 FSupp 1169. Also, Section 71 leave provisions are triggered where the individual is not permanently disabled as a result of the injury or disease necessitating such leave in that Section 71 provides such leave is available to employees ?unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.?

Full post as published by New York Public Personnel Law on April 30, 2008 (boomark / email).