N.Y. Comp. Codes R. & Regs. tit. 22 § 25.27

Current through Register Vol. 46, No. 16, April 17, 2024

Section 25.27 - Incapacitated employees

(a) When there is reason to believe that an employee to whom the disciplinary procedures of section 25.29 of this Part apply is physically or mentally disabled from performing, with or without reasonable accommodation, the essential functions of his or her position, the appropriate administrative authority may require such employee to undergo a physical or psychiatric examination at the expense of the State, to be conducted by a medical officer selected by the Chief Administrator, to establish whether he or she is able to perform, with or without reasonable accommodation, the essential functions of his or her position or whether his or her continued presence on the job creates a significant risk to the health or safety of the individual or of others that cannot be eliminated with reasonable accommodation. For purposes of this section, the appropriate administrative authority shall be the designating authority set forth in section 25.29(b) of this Part. If, upon such medical examination, the medical officer certifies that either condition exists, the employee shall be placed on leave of absence without pay subject to the provisions of subdivision (c) of this section. An employee placed on such leave shall be allowed to draw accumulated and unused sick leave, annual leave, compensatory time, overtime credits and other time allowances standing to his or her credit prior to being placed on such leave. An employee who chooses to draw his or her accumulated leave credits under this section shall cease to earn and accrue sick and annual leave credits during that period.

(b) When an employee who is not permanently incapacitated from performing the duties of his or her position has been absent from and unable to perform the duties of his or her position by reason of sickness or disability either for a consecutive period of one year or more or for a cumulative total of 250 workdays or more within a period of 24 consecutive calendar months, and who reasonably cannot be expected to be able to resume performing, with or without reasonable accommodation, the essential functions of his or her position shortly thereafter, his or her employment may be terminated by the appropriate administrative authority and the position may be filled by a permanent appointment.

(c) Prior to being placed on leave pursuant to subdivision (a) of this section, or terminated pursuant to subdivision (b), an employee shall be provided with written notice thereof, including written notice of the facts relied on therefor and written notice of the employee's right to contest the determination and of the procedures for doing so. Such notice shall be served in person or by first class, registered or certified mail, return receipt requested, upon the employee. If such person elects to contest the determination, he or she shall file a written request for a hearing with the appropriate administrative authority within 10 workdays from service of the notice of the determination to be reviewed. The request for such hearing shall be filed by the employee personally or by first class, certified or registered mail, return receipt requested. Upon receipt of such request, the appropriate administrative authority shall supply to the employee, or his or her personal physician or authorized representative, copies of all diagnoses, test results, observations and other data supporting the determination, and imposition of the leave or termination shall be held in abeyance until a final determination is made by the appropriate administrative authority as provided in subdivision (d) of this section.

(d) A hearing shall be held by a hearing officer designated for that purpose by the appropriate administrative authority. The hearing officer shall be vested with all the powers of the administrative authority and shall make a record of the hearing which shall, with his or her recommendation, be referred to the administrative authority for review and decision and which shall be provided to the employee free of charge. The employee shall, upon request, receive a copy of the transcript of the hearing without charge. The employee may be represented at the hearing by counsel or an authorized representative and may present medical experts and other witnesses or evidence. The burden of proving mental or physical unfitness shall be upon the administrative authority. Compliance with technical rules of evidence shall not be required. The administrative authority shall render a final determination and may either uphold the original notice of leave of absence, withdraw such notice or modify the notice as appropriate. A final determination of an employee's request for review shall contain notice to the employee of his or her right to appeal from such determination and of the procedures for perfecting such appeal.

(e) If the employee elects to appeal, he or she shall make application to the Chief Administrator. The employee shall be afforded an opportunity to present facts and arguments, including medical evidence, in support of his or her position at a time and place and in such manner as may be prescribed by the Chief Administrator. The Chief Administrator shall make a determination on the basis of the medical records and such facts and arguments as are presented.

(f) An employee placed on leave pursuant to this section may, within one year of the commencement of such leave, make application to the appropriate administrative authority for a medical examination to be conducted by a medical officer selected for the purpose by the Chief Administrator. If, upon such medical examination, the medical officer shall certify that the employee is physically and mentally fit to perform, with or without reasonable accommodation, the essential functions his or her former position, he or she shall be reinstated to the former position, if vacant, or to a vacancy in a similar position or a position in a lower title in the same occupational field in his or her former promotion unit. If no appropriate vacancy shall exist to which such reinstatement may be made, or if the work load does not warrant the filing of such vacancy, the name of the employee shall be placed on a preferred list for his or her former position in his or her former promotion unit, and the employee shall be eligible for reinstatement in such former promotion unit from such preferred list for a period of four years. In the event that the employee is reinstated in a position in a title lower than that of his or her former position, his or her name shall be placed on the preferred eligible list for the former position or any similar position in such former promotion unit.

(g) An employee placed on leave pursuant to this section who is not reinstated within one year after the date of commencement of such leave, may be terminated by the appropriate administrative authority and his or her position may be filled by permanent appointment.

(h) An employee whose employment status has been terminated pursuant to subdivision (b) or (g) of this section may, within one year after the termination of his or her disability, make application to the appropriate appointing authority for a medical examination and subsequent reinstatement pursuant to the procedures and conditions of subdivision (f) of this section.

(i) Where the continued presence of an employee on the job creates a significant risk to the health or safety of the individual or of others that cannot be eliminated with reasonable accommodation, or would significantly interfere with operations, the appropriate administrative authority may place such employee on an involuntary leave of absence without pay immediately; provided, however, that the employee shall be entitled to draw all accumulated and unused sick leave, annual leave, compensatory time, overtime credits and other time allowances standing to his or her credit. An employee so placed on leave shall thereafter be subject to all of the procedures of this section for placement on leave of absence, except that imposition of such leave shall not be held in abeyance pursuant to subdivision (c) of this section. If it is finally determined pursuant to subdivision (d) of this section, that the employee was physically and mentally fit to perform, with or without reasonable accommodation, the essential functions 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, less any compensation he or she may have earned in other employment or occupation and any unemployment benefits he or she may have received during such period.

(j) Notwithstanding any other provision of this section, when an employee's disability is of such a nature as to permanently incapacitate him or her from the performance, with or without reasonable accommodation, the essential functions of his or her position, his or her employment status may be terminated once he or she has exhausted any workers' compensation leave to which he or she may be entitled pursuant to section 24.5 of this Title, and his or her position may be filled by a permanent appointment.

(k) This section shall not be construed to require the extension of any employment beyond the time at which it would otherwise terminate by operation of law, rule or regulation, nor shall this section be deemed to modify or supersede any other provisions of law applicable to the reemployment of persons retired from the public service on account of disability.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 25.27