N.Y. Comp. Codes R. & Regs. tit. 4 § 28-1.8

Current through Register Vol. 46, No. 24, June 12, 2024

Section 28-1.8 - Workers' compensation leave

This section governs leave for employees necessarily absent from duty because of an injury or disease arising out of and in the course of State employment. Subdivisions (a) through (o) inclusive, govern leave for those whose injury or disease occurred before September 2, 1986, subdivisions (p) through (y) inclusive, govern leaves for those whose injury or disease occurred on or after September 1, 1986 and before September 1, 1994 and subdivisions (z) through (gg) inclusive, govern leaves for those whose injury or disease occurred on or after September 1, 1994.

(a)

(1) Except as otherwise provided in subdivisions (b) and (c) of this section, an employee necessarily absent from duty because of an injury or disease arising out of and in the course of State employment which occurred or was suffered before September 1, 1986 shall be allowed leave from his or her position in accordance with the provisions of subdivisions (a) through (o) of this section for the period during which the employee is unable to perform the duties of his or her position because of such injury or disease upon giving timely notice that such absence is the result of such injury or disease and that a claim has been or will be filed for benefits under the New York State Workers' Compensation Law. Such leave shall be permitted for all periods of absence resulting from such injury or disease, not to exceed a cumulative total of one year; provided, however, such leave may be continued for additional periods at the discretion of the appointing authority.

(2) Upon granting workers' compensation leave pursuant to subdivision (a) or (b) of this section, the appointing authority shall provide the employee in writing with the notice specified in section 5.9(b) of this Title, within the time specified by that section.

(3) No less than 30 days nor more than 60 days prior to the anticipated expiration of an employee's workers' compensation leave, or the effective date of a terminaiton of the leave by the employer pursuant to section 71 of the Civil Service Law upon a finding that the unfitness to perform the duties of the position is permanent where that determination does not arise from a hearing, the appointing authority shall provide the employee in writing with the notice specified in section 5.9(c)(2) of this Title. If for any reason less than 30 days would remain prior to the date of termination of leave, if that termination is not the result of a hearing, service of the notice shall be deemed to be a grant by the appointing authority of an extension of the leave to a date 30 days from the date of service of this notice.

(b) Controverted cases. If the employee's claim for benefits under the Workers' Compensation Law is controverted by the State Insurance Fund at the request of the appointing authority or on its own initiative, the employee shall not be allowed workers' compensation leave. If final determination of the controverted claim is in favor of the employee, eligibility for leave shall be determined as provided in subdivisions (a) and (c) of this section for all absences necessitated by the occupational injury or disease.

(c) Leave withheld or terminated. Leave under subdivision (a) of this section may be withheld or terminated if:

(1) the appointing authority determines that the employee is permanently incapacitated;

(2) there is good and sufficient reason to believe that the employee's disability did not arise out of and in the course of employment with the State;

(3) there is good and sufficient reason to believe that the employee's disability is primarily due to some preexisting medical condition;

(4) there is good and sufficient reason to believe that the employee could report for work on a full-time or part-time basis;

(5) the employee has not upon request submitted satisfactory medical documentation of the claimed disability;

(6) the employee fails or refuses to submit to a medical examination conducted by a physician selected by the appointing authority and at the expense of the appointing authority; or

(7) the employee's services would have terminated or ceased under rule or law.

(d) Pay during leave. An employee allowed leave from his/her position pursuant to subdivision (a) of this section shall receive pay during such leave for each separate injury or disease and regardless of the date of occurrence of such injury or disease, subject to the following provisos:

(1) For the first 10 working days of such leave in any one calendar year, but not exceeding 10 working days in any one continuous period of leave spanning successive calendar years, the employee shall charge such leave to accrued leave credits, if any, subject to the exceptions listed in subdivision (e) of this section; provided, however, that the cumulative total of leave credits so charged shall not exceed the number of hours normally and regularly worked by the employee in a biweekly pay period.

(2) During a period of leave under paragraph (1) of this subdivision, the appointing authority shall advance up to 10 days of sick leave credits to an employee eligible to accrue leave credits but who has exhausted all such leave accruals, unless such employee requests otherwise in writing (except where such 10-day period is waived pursuant to subdivision [e] of this section), and such advanced sick leave credits shall be repaid as soon as practicable from subsequent accumulations of leave credits in a manner to be determined by the appointing authority; provided, however, that the cumulative total of leave credits so advanced shall not exceed the number of hours normally and regularly worked by the employee in a biweekly pay period.

(3) Beginning with the 11th workday of such leave in each calendar year, the employee shall be granted compensation leave with pay without charge to leave credits, but not exceeding a cumulative total of 131 workdays for each injury or disease; provided, however, that the cumulative total of such leave with pay shall not exceed the number of hours normally and regularly worked by the employee in 13 biweekly pay periods of employment.

(4) Upon exhausting leave with pay benefits under paragraph (3) of this subdivision, the employee shall be allowed to draw accrued leave credits.

(5) Upon exhausting leave with full pay benefits under paragraphs (3) and (4) of this subdivision, the employee shall be allowed sick leave at half pay for which such employee may be eligible.

(e) Waiver of 10-day waiting period. Notwithstanding the provisos set forth in subdivision (d) of this section, the following conditions will also apply:

(1) If the employee is required by a physician to be admitted as an inpatient to a hospital during the first 10 consecutive working days after the occurrence of an occupational injury or disease in any one calendar year, and otherwise qualifies for such leave pursuant to subdivisions (a) through (o) of this section, the employee shall not be required to charge leave credits for the first 10 days of such leave.

(2) If the employee is required to be absent for a period of 20 consecutive working days or more following the occurrence of an occupational injury or disease in any one calendar year, and otherwise qualifies for such leave pursuant to subdivisions (a) through (o) of this section, the employee shall not be required to charge leave credits for the first 10 days of such leave.

(3) Where an employee is required by the employer, the State Insurance Fund or Workers' Compensation Board to attend a medical examination or a hearing during the first 10 working days of such leave in any one calendar year, and otherwise qualifies for such leave pursuant to subdivisions (a) through (o) of this section, the employee shall not be required to charge leave credits for the time required, including reasonable travel time, for such medical exam or hearing during such 10 working days.

(4) Upon written application by an employee within 45 days of the occurrence of an occupational injury or disease, the head of a department or agency or his/her designee may, in his/her discretion, waive the requirement that an employee charge or repay, if advanced, the first 10 working days of such leave in any one calendar year to accrued leave credits. The decision of the head of a department or agency, or his/her designee, shall not be reviewable. For the purposes of this paragraph, occurrenceshall also be deemed to mean the commencement of an absence due to the reoccurrence in subsequent calendar years of an occupational injury or disease.

(f) Employee election to draw leave credits. An employee allowed leave with pay under subdivisions (a) through (o) of this section may elect to draw accrued leave credits for part or all of such employee's absences from duty before being granted leave with pay under subdivision (d) of this section.

(g) Absences of less than a full day. An employee who is necessarily absent from duty as described hereinabove may be granted compensation leave with pay, without charge against leave credits, for absences of less than a full day.

(h) Leave for hearings and medical examination. An employee who is allowed leave with full pay as provided in subdivision (d) of this section shall be allowed such leave with pay when absent from duty for the purpose of attending a hearing scheduled by the Workers' Compensation Board or a board-ordered medical examination, or visiting a doctor for examination or treatment, subject to the proviso set forth in subdivision (d).

(i) Accrual of leave credits. An employee who receives full pay for any period of leave under this section shall earn leave credits during such period.

(j) Holiday observance. An employee on leave with pay without charge to leave credits under paragraph (d)(3) of this section, on days observed as holidays by the State as an employer, shall not be eligible to observe such days as paid holidays nor eligible for compensatory time off in lieu thereof.

(k) Reimbursement by employee. If it is subsequently determined that an employee was not entitled to compensation leave with pay, without charge to leave credits, for any period for which such employee was granted such leave as provided hereinabove, the employee shall be required to make reimbursement for such paid leave from current or subsequent accumulations of leave credits at a rate and in a manner determined by the appointing authority.

(l) Restoration of leave credits. An employee who draws leave credits or is allowed sick leave at half pay, as provided in subdivision (d) of this section, shall be entitled to restoration of such credits and such sick leave at half-pay eligibility, excluding leave credits charged pursuant to paragraph (d)(1) of this section or advanced pursuant to paragraph (d)(2), but including those used for absences of less than a full day, as are used during a period of absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid. Credits so restored may not again be used for future absences attributable to the same injury or disease. In the event that the employee dies, resigns, retires or is terminated, cash payment for vacation and overtime credits, including any credits so restored, shall be made in accordance with applicable provisions. In any other case, an employee who returns to duty after absence on leave under this section shall have one year from the date of such return or restoration of credits to reduce his/her accrued leave credits, exclusive of personal leave, to the prescribed limits. Personal leave may not be restored as provided herein if the award of compensation is received more than 12 months following the personal leave anniversary date on which such personal leave was credited.

(m) Return to duty. Upon request of the employee to report for duty from compensation leave, the appointing authority, if in doubt as to whether the employee is physically and mentally fit to perform the duties of the position, may require the employee to undergo medical examination, by a physician designated by the appointing authority, before the employee may be restored to duty pursuant to the procedures of section 5.9 of this Title.

(n) Medical examination. In order to enable the appointing authority to make such determinations as are authorized or required under subdivisions (a) through (o) of this section, the appointing authority may require an employee at any time to be examined by a physician designated by the appointing authority.

(o) Construction. The provisions of subdivisions (a) through (o) of this section shall not be construed to require extension of any employment beyond the time at which it would otherwise terminate or to require the granting of any leave benefits provided herein solely because of determinations made by the Workers' Compensation Board.

(p)

(1) Workers' compensation benefits for injuries or diseases suffered on or after September 1, 1986. Except as otherwise provided in subdivisions (p) through (y) of this section, an employee necessarily absent from duty because of an injury or disease arising out of and in the course of State employment which occurred or was suffered on or after September 1, 1986 shall be allowed leave from his or her position in accordance with the provisions herein for the period during which the employee is unable to perform the duties of his or her position because of such injury or disease upon giving timely notice that such absence is the result of such injury or disease and that a claim has been or will be filed for benefits under the New York State Workers' Compensation Law. Such leave shall be permitted for all periods of absence resulting from such injury or disease, not to exceed a cumulative total of one year; provided, however, such leave may be continued for additional periods at the discretion of the appointing authority. Such leave may be denied or terminated if the appointing authority determines that the employee is permanently incapacitated or the employee's services would have otherwise been terminated or ceased under rule or law. No leave shall be allowed under subdivisions (p) through (y) of this section if the State Insurance Fund contests a claim filed by an employee, whether at the request of the appointing authority or on its own initiative, because it is alleged that such injury or disease did not occur on the job or the employee has not suffered any such injury or disease. If such claim is resolved in favor of the employee, eligibility for leave shall be determined as provided in this subdivision for all absences necessitated by the occupational injury or disease. In the event a person who has returned to work claims that he or she has suffered a reoccurrence of a previous injury or disease, which claim is then contested, such claim shall be deemed a new claim for the purpose of this subdivision unless resolved in favor of the employee.

(2) Upon granting workers' compensation leave pursuant to this subdivision, the appointing authority shall provide the employee in writing with the notice specified in section 5.9(b) of this Title, within the time prescribed by that rule.

(3) No less than 30 days nor more than 60 days prior to the anticipated expiration of an employee's workers' compensation leave, or the effective date of a termination of the leave by the employer pursuant to section 71 of the Civil Service Law upon a finding that the unfitness to perform the duties of the position is permanent where that determination does not arise from a hearing, the appointing authority shall provide the employee in writing with the notice specified in section 5.9(c)(2) of this Title. If for any reason less than 30 days would remain prior to the date of termination of leave, if that termination is not the result of a hearing, service of the notice shall be deemed to be a grant by the appointing authority of an extension of the leave to a date 30 days from the date of service of this notice.

(q) Compensation and pay benefits. An employee on leave from his or her position pursuant to subdivision (p) of this section shall receive compensation or pay benefits during such leave for each separate injury or disease occurring on or after September 1, 1986 as hereinafter provided:

(1) During the period of absence for which payment is being made pursuant to Part 89 of this Title (president's regulations), an employee shall be deemed to be in full paid leave status.

(2) An employee who has been absent for less than one year and who has exhausted the supplemental benefit shall, while receiving benefits pursuant to the Workers' Compensation Law, be continued on the payroll at full pay until the employee's leave accruals, if any, have been exhausted, unless such employee requests that he or she not be so continued on the payroll, or if in such status, that such leave with pay be discontinued.

(3) An employee who has been absent for less than one year shall, upon exhausting all accrued leave credits and while receiving benefits pursuant to the Workers' Compensation Law be granted such sick leave at half-pay for which the employee is otherwise eligible.

(4) Nothing herein shall prevent the appointing authority from continuing an employee on leave with pay pursuant to paragraph (2) or (3) of this subdivision in excess of one year if the employee is otherwise eligible to be continued on such leave.

(r) Waiting periods.

(1) An employee who is absent for seven or fewer calendar days due to a single occupational injury or disease shall be permitted to charge such absence to accrued leave credits or shall be granted a leave without pay for such period of absence.

(2) An employee who is absent for more than seven but fewer than 15 calendar days for a single occupational injury or disease shall be permitted to charge such absence up to the eighth calendar day to leave credits or shall be granted a leave without pay for such period of absence. Leave credits used for days of absence commencing on the eighth calendar day shall be recredited upon return to work or upon receipt of payment pursuant to Part 89 of this Title, whichever occurs first.

(3) An employee who is absent for 15 or more calendar days for a single occupational injury or disease shall have any accrued leave credits used during any waiting period recredited upon return to work or upon receipt of payment pursuant to Part 89 of this Title, whichever occurs first.

(s) Advanced leave credits. An employee eligible for benefits pursuant to the Workers' Compensation Law who has used all leave accruals to which he or she is entitled and is not yet receiving payments pursuant to said Part 89 of this Title shall be granted advanced leave at full pay upon request filed with the appointing authority on a form to be provided by the State in accordance with and subject to the terms and conditions set forth in Part 89 of this Title.

(t) Election to draw leave credits. An employee allowed leave under subdivisions (p) through (y) of this section may elect to draw accrued leave credits for part or all of such employee's absences from duty before being granted the supplemental benefit pursuant to Part 89 of this Title.

(u) Accrual of leave credits. An employee who receives a supplemental benefit pursuant to Part 89 of this Title for any period of leave pursuant to subdivisions (p) through (y) of this section shall earn leave credits during such period in accordance with this article.

(v) Holiday observance. An employee on leave and receiving a supplemental payment pursuant to Part 89 of this Title in accordance with subdivision (q) of this section on days observed as holidays by the State as an employer shall not be eligible to observe such days as paid holidays, nor be eligible for compensatory time off in lieu thereof.

(w) Restoration of leave credits. Notwithstanding any limitations on the accumulation of leave accruals to the contrary, an employee who uses his or her accrued leave credits or is granted sick leave at half-pay as provided in paragraphs (2) and (3) of subdivision (q) of this section shall be entitled to the restoration of such credits and such sick leave at half-pay eligibility as he or she may have used during any period of such absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid. Leave credits so restored may not be used in the future for absences attributable to the same injury or disease. In the event that the employee dies, resigns, retires or is terminated, payment for vacation and overtime credits, including appropriate payments for any credits so restored, shall be made in accordance with the applicable provisions of law, rule or regulation. An employee shall have one year from the date of return to duty or restoration of credits, whichever is later, to reduce his or her accrued leave credits, exclusive of personal leave, to the maximum limits otherwise prescribed in these rules. Personal leave shall not be restored to any employee if the award of compensation is received more than 12 months following the personal leave anniversary date on which such personal leave would have been otherwise credited.

(x) Return to duty. Upon request of the employee to report for duty following absence due to occupational injury or disease, and prior to the expiration of the maximum period of allowed leave, if the appointing authority is uncertain as to whether the employee is physically and mentally fit to perform the duties of his or her position, the employee shall be required to be examined by a physician designated by the appointing authority before being permitted to return to duty pursuant to the procedures of section 5.9 of this Title.

(y) Construction. Nothing in subdivisions (p) through (x) of this section shall be construed to require extension of any employment beyond the time at which it would otherwise terminate or be terminated.

(z)

(1) Workers' compensation benefits for injuries or diseases suffered on or after September 1, 1994. Except as otherwise provided in subdivisions (z) through (gg) of this section, an employee necessarily absent from duty because of an injury or disease arising out of and in the course of State employment which occurred or was suffered on or after September 1, 1994 shall be allowed leave from his or her position in accordance with the provisions herein for the period during which the employee is unable to perform the duties of his or her position because of such injury or disease upon giving timely notice that such absence is the result of such injury or disease and that a claim has been or will be filed for benefits under the New York State Workers' Compensation Law. Such leave shall be permitted for all periods of absence resulting from such injury or disease, not to exceed a cumulative total of one year; provided, however, such leave may be continued for additional periods at the discretion of the appointing authority. Such leave may be denied or terminated if the appointing authority determines that the employee is permanently incapacitated or the employee's services would have otherwise been terminated or ceased under rule or law. No leave shall be allowed under subdivisions (z) through (gg) of this section if the State Insurance Fund controverts or contests a claim filed by an employee, whether at the request of the appointing authority or on its own initiative, because it is alleged that such injury or disease did not occur on the job or the employee has not suffered any such injury or disease. If such claim is resolved in favor of the employee, eligibility for leave shall be determined as provided in this subdivision for all absences necessitated by the occupational injury or disease. In the event a person who has returned to work claims that he or she has suffered a reoccurrence of a previous injury or disease, which claim is then contested, such claim shall be deemed a new claim for the purpose of this subdivision unless resolved in favor of the employee.

(aa) Benefits. An employee on leave from his or her position pursuant to subdivision (z) of this section shall, for each separate injury or disease occurring on or after September 1, 1994, be placed on workers' compensation disability leave without pay for all absences and shall receive benefits pursuant to the Workers' Compensation Law.

(bb) Election to draw leave credits.

(1) An employee allowed leave under subdivisions (z) through (gg) of this section may elect to draw accrued leave credits for part or all of such employee's absences from duty.

(2) An employee allowed leave under subdivisions (z) through (gg) of this section and subject to section 28-1.5 of this Part, sick leave at half-pay, of these rules may elect to use any sick leave at half-pay to which that employee is entitled.

(3) An employee allowed leave under subdivisions (z) through (gg) of this section and subject to Subpart 28-2 of this Part, absence with pay for illness/disability for certain managerial/confidential employees, of these rules shall be allowed to apply for benefits under Part 78 of this Title, Income Protection Plan, of these rules to which he/she may be entitled.

(cc) Accrual of leave credits. Notwithstanding any attendance rule to the contrary, and regardless of pay status, an employee absent in accordance with subdivision (aa) of this section shall earn leave credits for the first 12 cumulative months of such absence.

(dd) Holiday observance. An employee on leave in accordance with subdivision (aa) of this section on days observed as holidays by the State as an employer, and who is not drawing against accrued leave credits pursuant to paragraph (bb)(1) of this section, shall not be eligible to observe such days as paid holidays nor be eligible for compensatory time off in lieu thereof.

(ee) Restoration of leave credits. Notwithstanding any limitations on the accumulation of leave accruals to the contrary, an employee who uses his or her accrued leave credits or is granted sick leave at half-pay as provided in subdivision (bb) of this section or in connection with a contested or controverted claim which is subsequently resolved in the employee's favor by the Workers' Compensation Board shall be entitled to the restoration of such credits and such sick leave at half-pay eligibility proportional to the net monetary award credited to New York State by the Workers' Compensation Board or proportional to 60 percent of the employee's gross salary, whichever is greater, as he or she may have used during any period of such absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid. Gross salary is defined as the employee's base annual salary rate plus inconvenience and location pay and geographic and shift differential pay to which the employee was entitled at the time of the accident. Leave credits so restored may not be used in the future for absences attributable to the same injury or disease. In the event that the employee dies, resigns, retires or is terminated, payment for vacation and overtime credits, including appropriate payments for any credits so restored, shall be made in accordance with the applicable provisions of law, rule or regulation. An employee shall have one year from the date of return to duty or restoration of credits, whichever is later, to reduce his or her accrued leave credits, exclusive of personal leave, to the maximum limits otherwise prescribed in these rules. Personal leave shall not be restored to any employee if the award of compensation is received more than 12 months following the personal leave anniversary date on which such personal leave would otherwise have been credited.

(ff) Return to duty. Upon request of the employee to report for duty following absence due to occupational injury or disease, and prior to the expiration of the maximum period of allowed leave, if the appointing authority is uncertain as to whether the employee is physically and mentally fit to perform the duties of his or her position, the employee shall be required to be examined by a physician designated by the appointing authority before being permitted to return to duty pursuant to the procedures of section 5.9 of the Rules for the Classified Service.

(gg) Construction. Nothing in subdivisions (z) through (gg) of this section shall be construed to require extension of any employment beyond the time at which it would otherwise terminate or be terminated.

N.Y. Comp. Codes R. & Regs. Tit. 4 § 28-1.8