72 - Leave for ordinary disability.

§ 72. Leave  for  ordinary  disability. 1. When  in the judgment of an  appointing authority an employee is unable to perform the duties of  his  or  her  position  by  reason  of  a disability, other than a disability  resulting from occupational injury or disease as defined in the workers'  compensation law, the appointing authority may require such employee  to  undergo  a  medical  examination  to  be  conducted by a medical officer  selected by the civil service department or municipal commission  having  jurisdiction.  Written  notice  of the facts providing the basis for the  judgment of the appointing authority that the employee  is  not  fit  to  perform  the  duties  of  his  or  her position shall be provided to the  employee  and  the  civil  service  department  or   commission   having  jurisdiction  prior  to the conduct of the medical examination. If, upon  such medical examination, such medical officer shall certify  that  such  employee  is not physically or mentally fit to perform the duties of his  or her position, the appointing authority  shall  notify  such  employee  that  he or she may be placed on leave of absence. An employee placed on  leave of absence pursuant to this  section  shall  be  given  a  written  statement  of the reasons therefor. Such notice shall contain the reason  for the proposed leave and the proposed date on which such leave  is  to  commence,  shall  be  made  in  writing and served in person or by first  class, registered or certified mail, return receipt requested, upon  the  employee.  Such  notice  shall  also  inform  the employee of his or her  rights under this procedure. An employee shall be  allowed  ten  working  days  from  service  of  the  notice  to object to the imposition of the  proposed leave of absence and to request a hearing. 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 appointing authority shall supply to the employee, his  or her personal physician or authorized representative,  copies  of  all  diagnoses,  test  results,  observations  and  other data supporting the  certification, and imposition of the proposed leave of absence shall  be  held  in  abeyance until a final determination is made by the appointing  authority as provided in this section.  The  appointing  authority  will  afford  the  employee  a  hearing  within  thirty  days of the date of a  request by the employee to be held by  an  independent  hearing  officer  agreed to by the appointing authority and the employee except that where  the  employer  is  a city of over one million in population such hearing  may  be  held  by  a  hearing  officer  employed  by   the   office   of  administrative  trials  and hearings. If the parties are unable to agree  upon a hearing officer, he or she shall be selected by lot from  a  list  of  persons  maintained  by  the  state department of civil service. The  hearing officer  shall  not  be  an  employee  of  the  same  appointing  authority  as  the  employee  alleged to be disabled. He or she shall be  vested with all of the powers of the  appointing  authority,  and  shall  make   a   record   of   the  hearing  which  shall,  with  his  or  her  recommendation, be referred to the appointing authority for  review  and  decision  and  which  shall be provided to the affected employee free of  charge. A copy of the transcript of the hearing shall, upon  request  of  the  employee  affected,  be  transmitted  to  him  without  charge. The  employee  may  be  represented  at  any  hearing   by   counsel   or   a  representative  of  a  certified or recognized employee organization and  may present  medical  experts  and  other  witnesses  or  evidence.  The  employee shall be entitled to a reasonable period of time to obtain such  representation. The burden of proving mental or physical unfitness shall  be  upon  the  person  alleging  it.  Compliance with technical rules of  evidence shall not be required. The appointing authority will  render  a  final  determination  within  ten working days of the date of receipt of  the  hearing  officer's  report  and  recommendation.   The   appointingauthority  may  either  uphold  the original proposed notice of leave of  absence, withdraw such notice or modify the notice  as  appropriate.  In  any event, a final determination of an employee's contest of a notice of  leave  shall  be rendered within seventy-five days of the receipt of the  request for review. An employee  on  such  leave  of  absence  shall  be  entitled  to draw all accumulated, unused sick leave, vacation, overtime  and other time allowances standing to his or her credit. The  appointing  authority in the final determination shall notify the employee of his or  her  right  to  appeal  from  such  determination  to  the civil service  commission having jurisdiction in accordance with subdivision  three  of  this section.    2.  An  employee  placed  on leave pursuant to subdivision one of this  section may, within one year after the  date  of  commencement  of  such  leave  of absence, or thereafter at any time until his or her employment  status is terminated, make application to the civil  service  department  or municipal commission having jurisdiction over the position from which  such  employee  is  on  leave,  for  a  medical examination by a medical  officer selected for that purpose by such department or commission.  If,  upon  such  medical examination, such medical officer shall certify that  such employee is physically and mentally fit to perform  the  duties  of  his  or  her  position,  he  or  she  shall  be reinstated to his or her  position.    3. An employee who is certified as not physically or mentally  fit  to  perform  the duties of his or her position and who is placed on leave of  absence pursuant to subdivision one of this section, or  who  is  denied  reinstatement  after  examination  pursuant  to  subdivision two of this  section, may appeal from such determination to the  state  or  municipal  civil  service  commission having jurisdiction over his or her position.  Such employee and appointing officer or their representatives  shall  be  afforded  an  opportunity  to  present facts and arguments in support of  their positions including medical evidence at a time and  place  and  in  such  manner  as  may be prescribed by the commission. Provided however,  that in considering appeals pursuant to subdivision two of this  section  where  a  hearing  has not been held within nine months from the date of  notification pursuant to subdivision one of this section, the commission  shall designate an independent hearing officer who shall hold a  hearing  and  report  thereon. The commission shall make its determination on the  basis of the medical  records  and  such  facts  and  arguments  as  are  presented  to  it.  The  final  determination of the commission shall be  binding on both the employee and  the  appointing  authority;  provided,  however,  that  an employee or appointing authority may seek review of a  final determination of a commission in accordance with the provisions of  article seventy-eight of the civil practice law and rules.    4. If an employee placed on leave pursuant  to  this  section  is  not  reinstated within one year after the date of commencement of such leave,  his  or  her  employment status may be terminated in accordance with the  provisions of section seventy-three of this article.    5. Notwithstanding any  other  provisions  of  this  section,  if  the  appointing  authority determines that there is probable cause to believe  that the continued presence of the employee  on  the  job  represents  a  potential danger to persons or property or would severely interfere with  operations,  it  may place such employee on involuntary leave of absence  immediately; provided, however, that the employee shall be  entitled  to  draw  all  accumulated  unused  sick leave, vacation, overtime and other  time allowances standing to his or her credit. If such  an  employee  is  finally determined not to be physically or mentally unfit to perform the  duties 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 mayhave lost because of such involuntary leave of absence restored  to  him  or  her  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.