Can I Lose My New York Civil Service Position Because of an Injury?

 Posted on July 09, 2020 in Civil Service Employment and Job Defense

New York Civil Service laws give those in public positions additional job securities that workers in the private sector do not have. Still, it is essential to understand those limits to understand your rights as a public employee. Knowing how the Civil Service Laws can protect you in the event of a severe physical or mental injury can help you retain your job while you take the time that you need to recover. If you ever run into legal trouble regarding your public position, save yourself the stress by working with an experienced civil service job defense lawyer who will help protect your best interests.

New York Civil Service Law and Medical Separation

Medical Separation/Termination for medical reasons is different from being fired for misconduct. If an employee cannot perform his or her full duties for a year or more because of a temporary disability that occurred on or off the job, the employer can remove the employee or medically separate the employee from his or her position. Sections 71, 72, and 73 of the New York Civil Service Law explain when and how a civil service employee may be medically separated.

When an employee is accused of misconduct under Section 75 of the New York Civil Service Law, his or her employer must provide the employee with a due process hearing before formally disciplining or terminating the accused. However, unlike misconduct hearings, a person can be medically separated under Sections 71 and 73 without a due process hearing. In order to obtain a hearing under Section 71 and 73, the employee’s doctor must provide documentation that the employee can perform the full duties of his or her position and the employer must refuse to return the employee back to work because the employer’s doctor disagrees with the employee’s doctor. If the employee’s doctor will not clear him or her to return to work without restrictions, the employee may not be entitled to a due process hearing before being medically separated/terminated.    

It is important to note that if civil servant employees are terminated due to misconduct, incompetence, or negligence under Section 75, they cannot return to work for that employer. Fortunately, if a civil service employee is medically separated/terminated due to a temporary disability, he or she can apply to be reinstated to his or her position after recovering from his or her injuries. Before a civil servant employee can be reinstated, a doctor appointed by the city or municipality must conduct an independent medical examination to determine if the employee is fit to return to work. If the independent medical doctor deems the employee fit to return to work without restrictions, in most cases, the employee can be reinstated to his or her prior position as a civil servant. 

There is some overlap between Sections 71-73, which govern medical separation, and Section 75, which governs misconduct. When an employee is injured or sick, he or she is generally required to use his or her sick leave to recover. Depending on how much sick time is used by the employee, an employer can choose to discipline the employee for excessive sick leave usage under Section 75 or seek to medically separate/terminate the employee Under Section 71 or 73. For example, if the employee has been out sick for more than 50 percent of the work year, a public employer can deem an employee medically incompetent and unable to perform his or her duties. Under Section 75, medical incompetence is a “dereliction or neglect of duty” that can lead to disciplinary charges, which can result in termination. An employee who is unable to perform his or her duties for more than one year can be subject to both medical separation and misconduct proceedings initiated against him or her by his or her employer.

Contact a New York City Medical Separation Employment Lawyer

New York Civil Service Law protects public employees, but there is a limit. Know what protections are available to you and contest your medical separation with the assistance of a highly capable Manhattan Civil Service job defense attorney. Attorney Gregory Watford has 20+ years of experience defending clients in civil service law cases. Call our office today at 646-580-6675 to schedule your confidential consultation.

Source:
https://www.nysenate.gov/legislation/laws/CVS/71