Civil Service Law §72 Does Provide Procedural Safeguards For Voluntary Leave

In the Matter of Thomas Sheeran v. New York State Department of Transportation; In the Matter of Michelle Birnbaum v. New York State Department of Labor, 18 N.Y.3d 61 (Nov. 17, 2011)

The Court of Appeals addressed the issue of whether Civil Service Law §72 provides certain procedural safeguards to public employees who are prevented from work following a voluntary absence. The court held that the safeguards provided to public employees placed on involuntary leave also apply to those who originally left voluntarily.

Both of the petitioners in these two actions worked for public employers; Sheeran as a civil engineer for the State Department of Transportation and Birnbaum as an employee of the Department of Labor. Both individuals took voluntary leave due to illness and eventually sought to return to work. Although each submitted the required certification from their treating physician to return to work, both state departments exercised their right pursuant to 4 NYCRR 21.3(e) to have them examined by a state-affiliated physician. After each examination, it was determined that the employees were unfit to return to work; thus they were placed on involuntary leave.

Sheeran and Birnbaum both sought a hearing pursuant to Civil Service Law §72 but each department denied the requests, determining that the applicable collective bargaining agreements and 4 NYCRR 21.3 were the controlling authority. The claimants therefore filed Article 78 petitions to challenge their being placed on involuntary leave. Although the Supreme Court in each case granted the petitions, the Appellate Division reversed and dismissed them stating that the employers were allowed to place both on involuntary leave and, therefore, allowing them to be terminated pursuant to the applicable collective bargaining agreement.

The Court of Appeals looked extensively at the legislative history of the statutes involved and determined that the main purpose of Civil Service Law §72 was to afford tenured civil servant employees with procedural protections prior to involuntary separation from service. This protection should apply to employees who were on sick leave, sought a return to work and thereafter were prohibited from doing so. The court felt that if employers were allowed to act as these employers did in converting a voluntary leave to an involuntary leave, employees would be discouraged from taking voluntary leave when a medical situation would arise. The Court of Appeals felt that the Legislature never intended to deprive the employees of these procedural safeguards; thus the Court of Appeals reversed the Appellate Division and reinstated the judgment of the lower court in granting the petitions.