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New York State Civil Service Law §75

They were groovy – bell-bottom pants, big hair, disco. But alas, we are a law firm, so it is not those seventies we are referring to. Most public employers are familiar with New York State Civil Service Law §75 – the provision establishing the due process rights for many civil service employees. Several other provisions of the ‘70’s are equally important even if not as frequently used. Section 72 is one of them.

New York State Civil Service Law §72 governs how a public employer can place an employee on a leave of absence for a disability other than a work-related disability (work-related disabilities are governed by §71) or when an employee who has been on voluntary leave due to illness is prevented from returning to work by the employer.

Briefly, under Section 72, the appointing authority - the employer - can place an employee on an involuntary leave of absence if they're unable to perform their job duties due to a mental or physical disability. Section 72 permits the employer to require an employee to undergo a medical examination. Employers are also permitted to place an employee on an involuntary unpaid leave if deemed unfit to perform their duties. Of course, there are several nuanced procedural elements to follow prior to doing this.

Starting January 1, 2025, elements of Section 72 have been changed. (Chapter 306 of the Laws of 2024) Employers must provide employees with a copy of any written or electronic communication it provides to a medical professional or other entity regarding the claim that the employee is unable to work. That information must be provided prior to conducting a medical fitness for duty exam.

In cases where an employee is removed immediately from work, the employee must be provided all documentation prior to any medical examination or lab testing. Typically, immediate referrals are when an employee is deemed a danger in the workplace. Given that, an employee may be provided with documentation contemporaneous with being removed from work. But the change in the law envisions it to be done prior.

As is the case with many other provisions in the 70s, the information being provided to the employee must also be transmitted to the appropriate civil service department or Commission. Because instances under section 72 often involve medical information, employers should be extremely careful about the manner in which this is transmitted.

When an employee is placed on leave pursuant to Section 72, the employee has to be given a written statement of reasons why they're being placed on leave and complete copies of all the documents, reports, and records that are relied upon for instituting leave.

These changes amend a lot of the process under Section 72. It is nuanced and highly recommended you work closely with your counsel to ensure the process is followed correctly. Not doing so can risk an employee not otherwise fit to work returning.

Stay groovy.

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DISCLAIMER
Nothing herein is meant to provide legal advice. You should always contact your attorney for specific advice and counsel on any legal matter you are working on.

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