14 CRR-NY 251.2NY-CRR
14 CRR-NY 251.2
14 CRR-NY 251.2
251.2 Absence with pay.
(a) For the purposes of this section:
(1) The term nonparticipant shall mean any employee subject to these rules in State service on December 31, 1985, including any employee on authorized leave of absence on such date and any person who was in State service prior to December 31, 1985 who, prior to said date, resigned, retired or who was otherwise separated from his/her position who is reemployed or reinstated to State service on or after January 1, 1986, who has creditable State service prior to January 1, 1986 and who is eligible for but declines to enroll or be enrolled in the Income Protection Plan established pursuant to the provisions of 4 NYCRR Part 78 and any such person who is not otherwise eligible to enroll or be enrolled in said plan. For the purpose of this section, an employee has prior creditable service if such person is reemployed within one year of resignation, retirement or termination or is reinstated by the Civil Service Department or Commission or by court order or is reemployed from or while eligible to be reemployed from a preferred list.
(2) The term enrolled employee shall mean any person subject to these rules who has enrolled, who must enroll or who has been enrolled in the Income Protection Plan established pursuant to the provisions of 4 NYCRR Part 78.
(3) The term ineligible shall mean any employee subject to these rules who is appointed on or after January 1, 1986 with no prior creditable service as defined in paragraph (1) of this subdivision who is not eligible to enroll or be enrolled in the Income Protection Plan established pursuant to the provisions of 4 NYCRR Part 78.
(b) Saturdays, Sundays and holidays.
(1) All Saturdays, Sundays and legal holidays shall, so far as practicable, be allowed as days off. Employees required to work on any of these days shall not be entitled to compensatory time off in lieu thereof.
(2) The days prescribed as holidays by the department's annual calendar for the school year shall be observed as holidays.
(3) No employee subject to these rules shall lose pay while employed in a teaching position during times other than the 10-month school year for days declared by the State as an employer to be special holidays provided such employee was scheduled to work on such days.
(c) Absences during school year.
Except as provided by these rules and except as provided by the department's annual calendar for the school year, employees shall not be entitled to any leave of absence with pay during the school year; provided, however, that the department may grant time off with pay for religious observance, teacher conferences and other appropriate professional meetings and for extraordinary or emergency absences. Employees may be required to make up such time off by appropriate adjustments in their daily or weekly work schedules.
(d) Sick leave.
(1) Sick leave is absence with pay necessitated by the illness or disability of the employee including illness or disability caused by pregnancy or childbirth.
(2) Nonparticipant employees shall earn sick leave credits at the rate of one-half day per biweekly pay period and may accumulate such credits up to a total of 200 days; provided, however, that no more than 165 days of such credits may be accumulated to pay for health insurance in retirement in accordance with section 167(4) of the Civil Service Law and provided, however, that an employee shall not earn sick leave credit for any biweekly pay period unless such employee is in full pay status for at least seven workdays during such biweekly pay period. A part-time employee who is required to work a fixed number of hours on a fixed schedule five days per week, or who is required to work at least half-time each biweekly pay period for a fixed number of hours on a fixed schedule shall also earn sick leave credit as provided herein, but total pay when absent on such leave shall be the amount which would have been due had such employee worked regularly at his/her usual hours for such period.
(3) Enrolled employees and ineligible employees who are on the payroll on the date on which sick leave credits are otherwise to be granted shall be entitled to 6½ days of sick leave credits for each 10-month school year of service up to a total of 200 days; provided, however, that no more than 165 days of such credits may be accumulated to pay for health insurance in retirement in accordance with section 167(4) of the Civil Service Law. Such sick leave shall be credited as follows:
(i) Such full-time employees shall be granted 3¼ days of sick leave credits on the first day of each semester of the school calendar beginning with the semester the first day of which follows the date on which such person first became subject to these rules; provided, however, that a person who elects to enroll in the Income Protection Plan pursuant to 4 NYCRR Part 78, shall immediately receive the prorated portion of 3¼ days of such sick leave credits, rounded to the next higher quarter day, based on the percentage of the semester remaining on the effective date of such election.
(ii) Such part-time employees shall be granted sick leave credits not to exceed 3¼ days on the first day of each semester which credits shall be prorated based on the percentage of full-time service such employee is scheduled to work on the sick leave grant dates.
(iii) Employees who are not in pay status on a date on which sick leave would otherwise be credited, shall be entitled to receive the prorated share of such leave credits, rounded to the next higher quarter day, based on the percentage of the semester remaining on the date they return to pay status, and, thereafter, on the first day of each succeeding semester for which they are otherwise eligible.
(4) An employee absent on sick leave shall notify the appropriate supervisor of such absence and the reason therefor on the first day of such absence and within two hours after the beginning of the employee's workday; provided, however, that where the work is such that a substitute may be required, the department may require earlier notification, but not more than two hours prior to the beginning of the employee's workday. Sick leave credits may be used in such units as the department may approve, but the department shall not require that sick leave credits be used in units greater than one-quarter hour.
(5) Before absence for personal illness may be charged against accumulated sick leave credits, the department may require such proof of illness as may be satisfactory to it, or may require the employee to be examined, at the expense of the department, by a physician designated by the department. In the event of failure to submit proof of illness upon request, or in the event that, upon such proof as is submitted or upon the report of medical examination, the department finds that there is not satisfactory evidence of illness sufficient to justify the employee's absence from the performance of his/her duties, such absence may be considered as unauthorized leave and shall not be charged against accumulated sick leave credits. Abuse of sick leave privileges shall be cause for disciplinary action.
(6) The department may require an employee who has been absent because of personal illness, prior to and as a condition of return to duty, to be examined, at the expense of the department, by a physician designated by the department, to establish that such employee is not disabled from the performance of his/her normal duties and that the return to duty will not jeopardize the health of other employees.
(7) In addition to personal illness of the employee, the following types of absence, when approved by the department, may be charged against accumulated sick leave credits: illness or death in the employee's family; provided, however, that charge for such absence shall not exceed a maximum of 15 days in any one year; absence of an employee certified by an examining physician as benefiting from the use of a service animal in performing major life activities, an employee registered with the New York State Commission for the Blind and Visually Handicapped as legally blind or certified by an examining physician or licensed optometrist as legally blind, as manifested by visual acuity of 20/200 or less in the better eye with best correction or a visual field of 20 degrees or less, or an employee who has a hearing impairment manifested by a speech discrimination score of 40 percent or less in the better ear with appropriate correction as certified by an examining physician or by a licensed audiologist or otolaryngologist, for the purpose of obtaining a service animal or guide dog and required training related thereto; provided, however, that charge for such absence shall not exceed a maximum of 26 days in any one calendar year; and personal visits to doctor or dentist. Proof of the need for such absence, satisfactory to the department, may be required.
(8) When an employee is transferred to another position in the same or a different department or agency and such position is subject to attendance rules approved by the New York State Civil Service Commission, accumulated sick leave credits shall be transferred with such employee. When an employee is separated from service for other than disciplinary reasons and is subsequently reinstated or reemployed within one year after such separation, or is reinstated by action of the State Civil Service Commission, or is reinstated or reemployed while eligible for reinstatement from a preferred list, sick leave credits accumulated and unused at the time of such employee's separation shall be restored; provided, however, that such sick leave credits shall not be restored except when leave records satisfactory to the department are available.
(9) Every employee shall, on the date on which he/she becomes subject to these rules, be credited with the number of days of sick leave which were accumulated under the Attendance Rules for Institution Teachers (14 NYCRR Part 250) and had remaining to his/her credit as of such date and thereafter shall be eligible to earn and be credited with sick leave as hereinabove provided.
(10) This subdivision shall not be construed to require extension of any employment beyond the time at which it would otherwise terminate by operation of law, rule or regulation.
(e) Extended sick leave.
(1) The department may, in its discretion, advance sick leave credits to nonparticipants absent due to personal illness who have exhausted accumulated sick leave credits. Such advanced sick leave credits shall be repaid, as soon as practicable after the employee's return to duty, from subsequent accumulations of time credits. The outstanding unrepaid sick leave credits advanced to any such employee under the provisions of this section shall not at any time exceed a total of five days.
(2) The department may, in its discretion, advance sick leave credits to ineligibles absent due to personal illness who have exhausted accumulated sick leave credits. Such advanced sick leave credits shall be repaid, as soon as practicable after the employee's return to duty, from subsequent accumulations of time credits. The outstanding unrepaid sick leave credits advanced to any such employee under the provisions of this section shall not at any time exceed a total of three days.
(3) The department may, in its discretion, upon written request from an employee certified by an examining physician as benefiting from the use of a service animal in performing major life activities, an employee registered with the New York State Commission for the Blind and Visually Handicapped as legally blind or certified by an examining physician or licensed optometrist as legally blind, as manifested by visual acuity of 20/200 or less in the better eye with best correction or a visual field of 20 degrees or less, or an employee who has a hearing impairment manifested by a speech discrimination score of 40 percent or less in the better ear with appropriate correction as certified by an examining physician or by a licensed audiologist or otolaryngologist, advance up to 26 days of sick leave to such employee who is absent for the purpose of obtaining a service animal or guide dog and required training related thereto and who has exhausted accumulated leave credits, provided the cumulative total of sick leave credits charged and/or advanced for this purpose does not exceed 26 days in any one calendar year. Such advanced sick leave credits shall be repaid, as soon as practicable after the employee's return to duty from subsequent accumulations of time credits. The outstanding unrepaid sick leave credits advanced to an employee under the provisions of this subdivision shall not, at any time, exceed a total of 26 days.
(4) Upon termination of the employee's services any such advance of sick leave not offset by subsequent accumulations of sick leave credits, shall be deducted from salary or wages due the employee.
(f) Sick leave at half-pay.
The department may, in its discretion, grant sick leave at half-pay for personal illness to nonparticipants and ineligibles having permanent status and having not less than one year of service after all sick leave credits have been used; provided, however, that the cumulative total of all sick leave at half-pay hereafter granted to any employee during such employee's State service shall not exceed one pay period for each complete six months of such State service.
(g) Personal leave.
(1) Personal leave is leave with pay for personal business including religious observance and extraordinary or emergency absences. Employees shall be entitled to personal leave not exceeding a total of three days in each school year.
(2) Personal leave may be drawn only at a time convenient to and approved in advance by the department; provided, however, that personal leave allowed for religious observance shall be granted on the days and hours required, insofar as the same may be granted at such time without interference with the proper conduct of government functions.
(3) Personal leave may be used in such units of time as the department may approve, but the department shall not require that personal leave be used in units greater than one-quarter hour.
(4) A part-time employee who is required to work a fixed number of hours on a fixed schedule five days per week, or who is required to work at least half-time each biweekly pay period for a fixed number of hours on a fixed schedule shall also receive personal leave as provided herein, but total pay when absent on such leave shall be the amount which would have been due had such employee worked regularly at his/her usual hours for such period.
(h) Leave for extraordinary weather conditions and extraordinary circumstances.
(1) The department may, in its discretion, grant employees time off with pay charged to leave credits (other than sick leave) for absences necessitated by excessive heat or other extraordinary weather conditions.
(2) Employees who have reported for duty and because of extraordinary circumstances or extraordinary weather conditions are directed to leave work, shall not be required to charge such directed early departures to their leave credits.
(3) During a state of emergency declared by the Governor, employees directed by the Governor not to report for duty to official work stations within the specific geographic area covered by the emergency declaration shall not be required to charge such directed absences to their leave credits.
(i) Workers' compensation leave.
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. Paragraphs (1)-(14) of this subdivision inclusive, govern leave for those whose injury or disease occurred before September 1, 1986 and paragraphs (15)-(23) inclusive, govern leaves for those whose injury or disease occurred on or after September 1, 1986 and before September 1, 1994, and paragraphs (24) through (31) inclusive, govern leaves for those whose injury or disease occurred on or after September 1, 1994.
(1) Except as otherwise provided in paragraphs (2) and (3) of this subdivision, 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/her position in accordance with the provisions of paragraphs (1)-(14) of this subdivision for the period during which the employee is unable to perform the duties of his/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 department.
(2) 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 department 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 paragraphs (1) and (3) of this subdivision for all absences necessitated by the occupational injury or disease.
(3) Leave may be withheld or terminated. Leave under paragraph (1) may be withheld or terminated if:
(i) the department determines that the employee is permanently incapacitated;
(ii) 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;
(iii) there is good and sufficient reason to believe that the employee's disability is primarily due to some preexisting medical condition;
(iv) there is good and sufficient reason to believe that the employee could report for work on a full-time or part-time basis;
(v) the employee has not upon request submitted satisfactory medical documentation of the claimed disability;
(vi) the employee fails or refuses to submit to a medical examination conducted by a physician selected by the department and at the expense of the department; or
(vii) the employee's services would have terminated or ceased under rule or law.
(4) Pay during leave. An employee allowed leave from his/her position pursuant to paragraph (1) of this subdivision 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 proviso:
(i) 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 paragraph (5) of this subdivision; 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.
(ii) During a period of leave under subparagraph (i) of this paragraph, the department 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 paragraph [5] of this subdivision), 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 department; 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.
(iii) The cumulative total of leave with full pay for each separate injury or disease granted pursuant to paragraph (1) of this subdivision shall not exceed six calendar months.
(iv) Upon exhausting leave with pay benefits under subparagraph (iii) of this paragraph, the employee shall be allowed to draw accrued leave credits.
(v) Upon exhausting leave with pay benefits under subparagraphs (iii) and (iv) of this paragraph, the employee shall be allowed sick leave at half-pay for which such employee may be eligible.
(5) Waiver of 10-day waiting period. Notwithstanding the proviso set forth in paragraph (4) of this subdivision, the following conditions will also apply:
(i) 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 paragraphs (1)-(14) of this subdivision, the employee shall not be required to charge leave credits for the first 10 days of such leave.
(ii) 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 paragraphs (1)-(14) of this subdivision, the employee shall not be required to charge leave credits for the first 10 days of such leave.
(iii) 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 paragraphs (1)-(14) of this subdivision, 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.
(iv) Upon written application by an employee within 45 days of the occurrence of an occupational injury or disease, the head of the department 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 the department, or his/her designee, shall not be reviewable.
For the purposes of this paragraph, occurrence shall also be deemed to mean the commencement of an absence due to the reoccurrence in subsequent calendar years of an occupational injury or disease.
(6) Employee may elect to draw leave credits. An employee allowed leave with pay under paragraphs (1)-(14) of this subdivision 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 paragraph (4) of this subdivision.
(7) 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.
(8) Leave for hearings and medical examination. An employee who is allowed leave with full pay as provided in paragraph (4) of this subdivision 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 paragraph (4) of this subdivision.
(9) 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.
(10) 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 department.
(11) Restoration of leave credits. An employee who draws leave credits or is allowed sick leave at half-pay as provided in paragraph (4) of this subdivision shall be entitled to restoration of such credits and such sick leave at half-pay eligibility, excluding leave credits charged pursuant to subparagraph (4)(i) of this subdivision or advanced pursuant to subparagraph (4)(ii) of this subdivision, 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. 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 after the last day of the school year in which the personal leave was used.
(12) Return to duty. Upon request of the employee to report for duty from compensation leave, the department, if in doubt as to whether the employee is physically and mentally fit to perform the duties of his/her position, may require the employee to undergo medical examination, by a physician designated by the department, before the employee may be restored to duty.
(13) Medical examination. In order to enable the department to make such determinations as are authorized or required under paragraphs (1)-(14) of this subdivision, the department may require an employee at any time to be examined by a physician designated by the department.
(14) Construction. The provisions of paragraphs (1)-(14) of this subdivision 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.
(15) Workers' compensation benefits for injuries or diseases suffered on or after September 1, 1986.
(i) Except as otherwise provided in paragraphs (15) through (23) of this subdivision, 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/her position in accordance with the provisions herein for the period during which the employee is unable to perform the duties of his/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 department. Such leave may be denied or terminated if the department determines that the employee is permanently incapacitated or the employee's services would have otherwise been terminated or ceased under rule or law.
(ii) No leave shall be allowed under paragraphs (15) through (23) of this subdivision if the State Insurance Fund contests a claim filed by an employee, whether at the request of the department 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 unlss resolved in favor of the employee.
(16) Compensation and pay benefits. An employee on leave from his/her position pursuant to paragraph (15) of this subdivision 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:
(i) During the period of absence for which payment is being made pursuant to Title 4 NYCRR Part 89 (President's Regulations), an employee shall be deemed to be in full paid leave status.
(ii) 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.
(iii) 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.
(iv) Nothing herein shall prevent the department from continuing an employee on leave with pay pursuant to subparagraph (ii) or (iii) of this paragraph in excess of one year if the employee is otherwise eligible to be continued on such leave.
(17) Waiting periods.
(i) 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.
(ii) 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 said Part 89, whichever occurs first.
(iii) 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 said Part 89, whichever occurs first.
(18) 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 shall be granted “advanced leave” at full pay upon request filed with the department on a form to be provided by the State in accordance with and subject to the terms and conditions set forth in said Part 89.
(19) Election to draw leave credits. An employee allowed leave under paragraphs (15) through (23) of this subdivision 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 said Part 89.
(20) Accrual of leave credits. An employee who receives a supplemental benefit pursuant to said Part 89 for any period of leave pursuant to paragraphs (15) through (23) of this subdivision shall earn leave credits during such period in accordance with this section.
(21) Restoration of leave credits. Notwithstanding any limitations on the accumulation of leave accruals to the contrary, an employee who uses his/her accrued leave credits or is granted sick leave at half-pay as provided in subparagraphs (16)(ii) and (iii) of this subdivision shall be entitled to the restoration of such credits and such sick leave at a 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. An employee shall have one year from the date of return to duty or restoration of credits, whichever is later, to reduce his/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.
(22) Return to duty. Upon request of the employee to report for duty following absence due to occupational injury or disease, if the department is uncertain as to whether the employee is physically and mentally fit to perform the duties of his/her position, the employee shall be required to be examined by a physician designated by the department before being permitted to return to duty.
(23) Construction. Nothing in paragraphs (15) through (22) of this subdivision shall be construed to require extension of any employment beyond the time at which it would otherwise terminate or be terminated.
(24)
(i) Workers' compensation benefits for injuries or diseases suffered on or after September 1, 1994. Except as otherwise provided in paragraphs (24) through (31) of this subdivision, 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 paragraphs (24) through (31) of this subdivision 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.
(ii) Upon granting workers' compensation leave pursuant to this subdivision, the appointing authority shall provide the employee in writing with the notice specified in 4 NYCRR, section 5.9(b), within the time prescribed by that rule.
(iii) 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 4 NYCRR, section 5.9(c)(2). 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.
(25) Benefits. An employee on leave from his or her position pursuant to paragraph (24) of this subdivision 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.
(26) Election to draw leave credits.
(i) An employee allowed leave under paragraphs (24) through (31) of this subdivision may elect to draw accrued leave credits for part or all of such employee's absences from duty.
(iii) A nonparticipant or ineligible employee allowed leave under paragraphs (24) through (31) of this subdivision may elect to use any sick leave at half-pay to which that employee is entitled.
(iii) An enrolled employee allowed leave under paragraphs (24) through (31) of this subdivision shall be allowed to apply for benefits under Part 78, Income Protection Plan, of Title 4 NYCRR to which he/she may be entitled.
(27) Accrual of leave credits. Notwithstanding any Attendance Rule to the contrary, and regardless of pay status, an employee absent in accordance with paragraph (25) of this subdivision shall earn leave credits for the first 12 cumulative months of such absence.
(28) Holiday observance. An employee on leave in accordance with paragraph (25) of this subdivision on days prescribed as holidays by the department's annual calendar for the school year, and who is not drawing against accrued leave credits pursuant to subparagraph (26)(i) of this subdivision, shall not be eligible to observe such days as paid holidays nor be eligible for compensatory time off in lieu thereof.
(29) 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 paragraph (26) of this subdivision 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. 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 this Part. 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.
(30) 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 4 NYCRR section 5.9 of the Rules for the Classified Service.
(31) Construction. Nothing in paragraphs (24) through (31) of this subdivision shall be construed to require extension of any employment beyond the time at which it would otherwise terminate or be terminated.
(j) Leave for subpoenaed appearance and jury attendance.
On proof of the necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body, an employee shall be granted a leave of absence with pay with no charge against leave credits; provided, however, that this section shall not apply to any absence by an employee occasioned by such an appearance as a party.
(k) Leave for civil service examination.
(1) Employees shall be allowed leave with pay to take New York State Civil Service examinations for State positions at the appropriate center, provided that due notice is given by the employee to the department. Leave shall be allowed for written, oral, physical and performance tests and for interviews from eligible lists, or for transfers providing the employee has not initiated the interview.
(2) Employees whose work shifts end less than eight hours prior to the starting time of an examination may, at the discretion of the department, be allowed leave with pay for part of such shifts.
(l) Leave for quarantine.
If an employee who is not personally ill is required to remain absent because of quarantine and presents a written statement of the attending physician or local health officer proving the necessity of such absence, such employee shall be granted leave with pay for the period of the required absence, without charge against leave credits. Prior to return to duty, such employee may be required to submit a written statement from the local health officer having jurisdiction that return to duty will not jeopardize the health of other employees.
(m) Leaves required by law.
The department shall grant any leave of absence, with pay, required by law.
(n) Leave for civil defense duties.
Upon certification by the State Director of Civil Defense of the necessity for the participation in State or local civil defense drills of an employee enrolled as a civil defense volunteer and required to perform civil defense duties pursuant to the State Defense Emergency Act, the department may allow such employee to be absent, without loss of pay or charge against leave credits, for such time as is necessary for participation in such drills, but not exceeding cumulatively five workdays per school year.
(o) Leave for professional meetings.
Subject to prior approval by the department, each employee may be allowed time off without charge to leave credits to attend conferences or seminars of recognized professional organizations, such conferences or seminars to be directly related to the employee's profession or professional duties. Requests for such leave may be approved to the extent that such absence would not interfere with the proper conduct of governmental functions.
(p) Leave for professional examination.
(1) Upon proper advance notice, an employee may be allowed leave with pay without charge to leave credits for the purpose of participating in one professional examination each year in such employee's discipline. In the event such examination is administered in several parts, the several parts shall be considered a single examination. Absence required for travel shall be charged to appropriate leave credits.
(2) If an employee is scheduled to work on a shift which ends within eight hours of commencement of such professional examination, the department may adjust the employee's work schedule or allow leave with pay charged to appropriate leave credits for part or all of such work shift.
(q) Absence with pay for illness of certain managerial/confidential employees charged to donated leave credits.
(1) This subdivision governs the transfer of vacation credits to eligible employees, as defined herein, for use for absences in connection with an illness or disability which did not arise in connection with such individual's employment.
(2) Eligibility to receive donated credits. In order to be eligible to receive donated credits an employee must be subject to this Part and eligible to earn leave accruals, must have completed at least one cumulative year of State service, must be absent due to a non-occupational personal illness or disability for which medical documentation satisfactory to management is submitted as required, must have exhausted all leave credits and must be expected to be absent for at least two biweekly payroll periods following exhaustion of leave credits or sick leave at half-pay. The employee must not have had any disciplinary actions or unsatisfactory performance evaluations within his/her last three years of State employment.
(3) Use of donated leave credits.
(i) For nonparticipant and ineligible employees subject to the sick leave provisions of this section, donated credits may be used at employee option either in full-day units following exhaustion of all available leave credits and prior to any sick leave at half-pay available to the employee pursuant to subdivision (f) of this section or in either full-day or half-day units following exhaustion of all available leave credits and any sick leave at half-pay available to the employee pursuant to subdivision (f) of this section.
(ii) For enrolled employees subject to this section, donated credits may be used in full-day units after all available leave credits are exhausted and prior to receipt of any disability benefits available to the employee pursuant to that subdivision.
(4) Eligibility to earn accruals. Employees absent while charging donated leave credits pursuant to this subdivision shall not earn sick leave, shall not be granted personal leave and shall not be eligible to observe holidays. Absences charged to donated leave credits shall be treated as leave without pay.
(5) Medical documentation. Before absence for personal illness may be charged against donated leave credits, the appointing authority may require such proof of illness as may be satisfactory to it, or may require the employee to be examined, at the expense of the department, by a physician designated by the appointing authority. In the event of failure to submit proof of illness upon request, or in the event that, upon such proof as is submitted or upon the report of medical examination, the appointing authority finds that there is not satisfactory evidence of illness sufficient to justify the employee's absence from the performance of his/her duties, such absence may be considered as unauthorized leave and shall not be charged against donated leave credits. Abuse of leave privileges shall be cause for disciplinary action.
(6) Return to work. The appointing authority may require an employee who has been absent because of personal illness charged to donated leave credits, prior to and as a condition of return to duty, to be examined, at the expense of the department, by a physician designated by the appointing authority, to establish that such employee is not disabled from the performance of his/her normal duties and that the return to duty will not jeopardize the health of other employees.
(7) Donation of credits.
(i) Vacation credits may be donated by employees who are subject to this Part and are employed in the same agency as the intended recipient employee. Where an agreement exists between the State and an employee organization, recognized or certified pursuant to article 14 of the Civil Service Law to represent a bargaining unit of State employees, which permits leave donations between employees of different agencies, the employees subject to this section may donate leave credits to employees eligible to receive donated leave credits who are employed by an agency other than the agency of the donor employee.
(ii) Limits on donation of credits. Such donations shall not cause the donor employee to have fewer than 10 days of vacation standing to his/her credit upon making such donation. Employees may not donate vacation credits which would otherwise be forfeited.
(iii) Return of donated credits. Donated leave credits unused and standing to the recipient employee's credit at time of return to work or separation from State service shall be returned to the employees who donated those unused credits.
(8) Donation exchange agreements. During the effective period of an applicable donation exchange agreement between the Governor's Office of Employee Relations and an employee organization, recognized or certified pursuant to article 14 of the Civil Service Law to represent a bargaining unit of State employees, providing for donation of vacation credits, pursuant to an authorized leave donation program to employees subject to this subdivision and employees subject to the leave donation program for that bargaining unit, such vacation credits may be received by an employee subject to this subdivision from an employee within such bargaining unit. Such credits shall be transferred and utilized in accord with the applicable donation exchange agreement and this subdivision or any such bargained program as applicable. Any donation exchange agreement shall be effective upon filing with the President of the Civil Service Commission and shall terminate 10 days after notice in writing by either party is served upon the President and the other party to the agreement.
(9) Construction. This subdivision shall not be construed to require extension of any employment beyond the time it would otherwise terminate by operation of law, rule or regulation.
14 CRR-NY 251.2
Current through May 31, 2021
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IMPORTANT NOTE REGARDING CONTENT CURRENCY: JULY 31, 2023, is the date of the most recently produced official NYCRR supplement covering this rule section. For later updates to this section, if any, please: consult editions of the NYS Register published after this date; or contact the NYS Department of State Division of Admisnistrative Rules at [email protected]. See Help for additional information on the currency of this unofficial version of the NYS Rules.