N.Y. Comp. Codes R. & Regs. tit. 9 § 488.1

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

Section 488.1 - Leave for ordinary disability

(a) All sworn members of the New York State Police, regardless of rank or assignment, must at all times be capable of strenuous physical duty and must be physically and mentally fit to perform the duties required of members of the State Police.

(b) Notwithstanding any other provisions of this section, if the superintendent or his designee reasonably determines that the continued presence of a member on the job represents a potential danger to persons, including such member, or property, or would unreasonably interfere with operations, the superintendent may immediately place such member on involuntary leave of absence. The employee shall be entitled to draw all accumulated unused sick leave, vacation, and other time allowances to which he or she is entitled. As soon as possible after the employee is involuntarily placed on leave of absence, the superintendent shall proceed as provided in subdivision (c) of this section. If the superintendent or his designee thereafter finally determines the member is physically and mentally fit to perform the duties of a member of the New York State Police, the member shall be restored to his or her position and any leave credits or salary lost because of such involuntary leave of absence shall be restored to the member.

(c) When, in the judgment of the Superintendent of State Police or his designee, a member of the New York State Police is unable to perform the duties required of all members of the State Police by reason of a physical or mental disability, the superintendent or his designee shall follow the procedures as set out below:

(1) Step I. The superintendent or his designee may require such member to undergo one or more medical, psychological or psychiatric evaluations conducted by one or more medical personnel selected and paid by the Division of State Police. Prior to such medical, psychological or psychiatric evaluations, the members shall be provided with a written statement of the basis for the judgment of the superintendent that the member is unable to perform the duties required of members of the New York State Police.

(2) Step II. Upon review of the reports of such medical, psychological or psychiatric evaluations, and other available information, the superintendent or his designee shall determine whether such member should be placed on leave of absence. If the superintendent or his designee determines that the member shall be placed on leave of absence, the member shall be so notified in writing. The notice of leave of absence shall contain a written statement of the reasons therefor, shall specify the date on which the leave is to commence and shall advise the member of his or her rights as provided in this section. The notice shall be served in person or sent by first class mail, return receipt requested, to the member at his last known address.

(3) Step III. A member so placed on leave of absence may, within 10 business days from service of such notice, object to the imposition of the proposed leave of absence and request a hearing. Such request for a hearing shall be in writing and forwarded to the superintendent through channels. Failure to file a timely request shall constitute waiver of the right to a hearing. Upon receipt of a written request for a hearing, the superintendent shall provide the member, through his or her legal representative, if any, copies of diagnoses, test results, recorded observations, or other data supporting the proposed leave of absence, imposition of which will be held in abeyance pending final determination by the superintendent or his designee after a hearing except under circumstances as provided in subdivision (b) of this section.

(4) Step IV. Upon timely request, the superintendent shall afford the member a hearing as soon as practicable after receipt of the request for a hearing. The hearing shall be held before a State Police commissioned officer holding the rank of staff inspector or higher, such hearing officer to be chosen by the superintendent or his designee. In all cases, the hearing officer shall be of higher rank than the member requesting the hearing. The member may be represented at the hearing by counsel or a representative of a certified or recognized employee organization. The employee shall be entitled to reasonable time to obtain said representation. The member may present medical experts and other witnesses or evidence. The Division of State Police shall have the burden of proving unfitness for duty by substantial evidence. Compliance with technical rules of evidence shall not be required. Testimony at the hearing shall be recorded. The hearing officer shall make a written report of his findings and recommendations, which shall be referred to the superintendent, together with the record, for final review and decision. At the conclusion of the hearing, the member may request to have the final decision of the superintendent rendered without the transcript of the testimony. Such request shall be on-the-record and in writing, and it shall be restricted to waiver of the requirement that the transcript of testimony be available to the superintendent before his final decision. If such member should subsequently petition for a judicial review of the superintendent's decision under article 78 of the Civil Practice Law and Rules (CPLR), he shall be furnished with a copy of the transcript of testimony without charge.

(5) Step V. The superintendent or his designee shall render a final written determination as soon as practicable after receipt of the hearing officer's report and shall provide the member with a copy of such determination. The superintendent may either uphold the original proposed notice of leave of absence, withdraw such notice, or modify the notice as appropriate. An employee placed on leave of absence pursuant to these procedures shall be entitled to draw all accumulated, unused sick leave, annual leave, personal leave, or other time allowances standing to his or her credit.

(d) When a member, who is absent due to injury, disease, or other disability, whether incurred on- or off-duty, shall seek to return to duty, and in the judgment of the superintendent or his designee such member may not possess the physical or mental fitness required of all members of the State Police, the superintendent shall follow the procedure set forth in subdivision (c) of this section, provided that the superintendent may elect not to restore such member to duty pending the outcome of such procedures.

(e) If a member shall fail to attend a scheduled physical, psychological or psychiatric evaluation or shall fail to cooperate with an evaluating medical officer without just cause, as determined by the superintendent or his designee, the superintendent or his designee may nevertheless determine that the member is physically or mentally unfit to perform the duties of a member of the New York State Police, in which case the superintendent or his designee may immediately place the member on leave of absence. The employee shall be entitled to draw all accumulated unused sick leave, vacation, and other time allowances to which he or she is entitled. Thereafter, such member may elect to proceed as set forth in subdivision (c) of this section, provided that the superintendent may elect to continue such employee on leave of absence pending such proceedings.

(f) If a member placed on leave pursuant to this section is not reinstated within one year after he or she has exhausted all accumulated, unused sick leave, annual leave, personal leave or other time allowances to which he or she is entitled, his or her employment status may be terminated. If a member's disability, in the judgment of the superintendent, permanently incapacitates him or her from performing his or her duties, such member's employment status may be terminated once he or she has exhausted accumulated, unused sick leave, annual leave, personal leave or other time allowances to which he or she is entitled.

(g) A member placed on leave pursuant to this section may, until one year after his employment status is terminated, make application to the superintendent for restoration or reinstatement to active duty. Upon receiving such a request, the superintendent may direct that the member undergo such medical, psychological or psychiatric evaluations as may be necessary, to be conducted by medical personnel selected by the superintendent. Upon review of the records of such evaluations, and other available information, the superintendent shall evaluate the case and as soon as practicable provide the member with written notice of his determination whether to permit the member to return to his or her duties.

(h) In the event that the superintendent determines pursuant to this section that a member making application for restoration or reinstatement to duty is fit therefor, but no appropriate vacancies shall exist to which such reinstatement may be made, or if the workload does not warrant the filing of such vacancy, the member's name shall be placed on a preferred list for his or her former position, and he or she shall be eligible for reinstatement in his or her former job title from such preferred list for a period of up to three years from the date of termination of his or her employment status.

(i) Nothing contained herein shall be construed to prohibit the superintendent or his designee, or the member or a person acting on his or her behalf from filing for State Police disability retirement pursuant to Retirement and Social Security Law, section 336-b at any time.

(j) This section shall not be construed to require the extension of any employment beyond the time at which it would otherwise terminate by operation of law, rule or regulation, nor shall this section be deemed to modify or supersede any other provisions of law applicable to the reemployment of persons retired from public service on account of disability.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 488.1