New York Court of Appeals Extends Procedural Protections to Public Employees Returning from Voluntary Medical Leave

January 9, 2012

As all public employers are aware, Section 72 of the New York Civil Service Law ("Section 72") provides both the procedure for placing a public employee on an involuntary leave when he or she is deemed unfit to perform his or her job due to illness or injury, and certain procedural protections to employees who are placed on such leave.  Specifically, any public employee who is placed on an involuntary leave is entitled to written notice of the reason for the proposed leave, the proposed date on which it is to begin, and his or her rights under the statute.  In addition, any such employee is entitled to a hearing concerning the employer's decision to place him or her on leave.

Historically, the protections of Section 72 have been applied only to employees who were placed on an involuntary leave from work.  However, a recent decision by the New York Court of Appeals extended those protections to public employees who are prevented by their employers from returning to work from a voluntary medical leave.

In Matter of Sheeran v. New York Dep't of Transp., 2011 N.Y. Slip Op. 8229 (Nov. 17, 2011), two state employees, who had been deemed unfit for duty and placed on involuntary leaves after attempting to return from voluntary medical leaves, challenged their placement on leave without a hearing under Section 72.  Their respective employers argued that 4 N.Y.C.R.R. Section 21.3, a Department of Civil Service regulation concerning sick leave, and the applicable collective bargaining agreements applied to these circumstances rather than Section 72, because the employees had been on voluntary medical leaves.  The Court of Appeals reversed the Appellate Division, Third Department's dismissal of the petitions, holding that there was no basis in Section 72 for making a distinction between an "employee who has been placed on involuntary leave from a voluntary one and one forced to take an involuntary leave."  In addition, the Court of Appeals noted that a different interpretation of Section 72 "would discourage employees from taking voluntary leave, since they would have greater rights if they remained on the job and waited to be involuntarily removed -- a result the Legislature surely did not intend."

As a result of this decision, public employers must be prepared to follow the procedural requirements of Section 72 any time they deem an employee unfit for duty, regardless of whether the employee was placed on an involuntary leave or was prevented from returning from a voluntary leave.