N.Y. Comp. Codes R. & Regs. tit. 4 § 21.8

Current through Register Vol. 46, No. 45, November 2, 2024

Section 21.8 - Workers' compensation leave

(a) Leave for absence necessitated by occupational injury or disease.

(1) Except as otherwise provided in subdivisions (b) and (c) of this section, an employee necessarily absent from duty because of occupational injury or disease as defined in the Workers' Compensation Law, upon giving notice to his appointing authority that he is absent on account of such injury or disease and that he claims benefits under such law, shall be allowed leave from his position for the period of absence necessitated by such injury or disease, up to cumulatively one year including any periods of such absence during which the employee draws vacation, sick leave or other leave credits. Such leave may be extended for further periods in the discretion of the appointing authority.

(2) Upon granting workers' compensation leave pursuant to subdivision (a) or (b) of this section, the appointing authority shall provide the employee in writing with the notice specified in section 5.9(b) of this Title, within the time prescribed by that rule.

(3) 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 section 5.9(c)(2) of this Title. 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.

(b) 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 appointing authority or on its own initiative) and the appointing officer is so notified, the employee shall not be entitled to leave under this section. This shall not, however, adversely affect the employee's eligibility for leave under other provisions of this Chapter. If final determination of the controverted claim is in favor of the employee, he shall be entitled to leave under this section, and all absences before such final determination, to the extent that the same were necessitated by his occupational injury or disease, shall be deemed to have been pursuant to leave under this section.

(c) Permanent incapacity. Leave under this section may be withheld or terminated if the appointing authority determines that the occupational injury or disease suffered by the employee is of such a nature as to permanently incapacitate him for the performance of the duties of his position.

(d) Pay during leave. An employee on leave under this section may receive pay, as follows:

(1) The appointing authority upon finding that the employee is in fact disabled from the performance of his duties, may grant the employee full pay during such leave not exceeding cumulatively six months. Such full pay may be granted irrespective of the employee's accrued credits under this Chapter.

(2) Except when on full pay status under paragraph (1) of this subdivision, the employee may draw accrued vacation, overtime and sick leave credits, subject to the provisions of this Chapter pertaining thereto.

(3) If not drawing full pay under paragraph (1) or paragraph (2) of this subdivision, an employee may, in the discretion of the appointing authority, be allowed to draw personal leave and sick leave at half pay for which he may be eligible under this Chapter.

(e) Accrual of leave credits. An employee who receives full pay for any period of leave under this section shall earn vacation and sick leave credits during such period.

(f) Award credited to State. An award by the Workers' Compensation Board of compensation for any period for which the employee receives or received pay from the State shall be credited to the State as reimbursement of wages paid.

(g) Restoration of leave credits. Leave credits, including sick leave at half pay, used by an employee during a period of absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid shall be restored to him in full; provided, however, that no restoration shall be made for any absence of less than a full day. Credits so restored may not again be used for future absences attributable to the same injury. In the event that the employee dies, resigns, retires or continues absent beyond one year without further leave, cash payment for vacation and overtime credits, including any credits restored under this subdivision, shall be made in accordance with the appropriate provisions of this Chapter. In any other case, an employee restored to service after absence on leave under this section shall have one year from the date of such restoration to reduce his accrued leave credits to the limits prescribed in this Chapter.

(h) Return to duty. Upon request of the employee for restoration to duty at or prior to the expiration of the maximum period of allowed leave, the appointing authority, if in doubt as to whether the employee is physically and mentally fit to perform the duties of the position, may require the employee to undergo medical examination, by a physician designated by the appointing authority, before the employee may be restored to duty. If restoration to duty is denied, the employee may make application therefor in the manner prescribed by section 5.9 of this Title. If an employee's employment is terminated as a matter of law due to continued absence after the expiration of the maximum period of allowed leave, or due to a finding of permanent disability, eligibility for reinstatement shall be governed by section 71 of the Civil Service Law and section 5.9 of this Title.

(i) Medical examination. In order to enable the appointing authority to make such determinations as are authorized or required under this section, the appointing authority may require an employee at any time to be examined by a physician designated by the appointing authority.

(j) Where the appointing authority has refused to grant the employee pay during leave pursuant to subdivision (d) of this section, the employee may request the Civil Service Commission to review the determination of the appointing authority. If the commission finds that such determination of the appointing authority is arbitrary or unreasonable, it may reverse or modify such determination. Where the appointing authority has withheld or terminated a leave of absence on the ground that the occupational injury or disease is of such a nature as to permanently incapacitate the employee for performance of the duties of the position, and the employee disputes the issue of permanence of incapacitation, the employee may apply for continued leave up to a maximum of one year in aggregate, restoration to duty or reinstatement to employment, pursuant to the procedures of section 5.9 of this Title.

(k) Construction. This section shall not be construed to require extension of any employment beyond the time at which it would otherwise terminate.

N.Y. Comp. Codes R. & Regs. Tit. 4 § 21.8