Current through Register Vol. 46, No. 39, September 25, 2024
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.
(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.
(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.
