21.3 Sick Leave - Rules Pages

Attendance and Leave Manual

Absence With Pay (Part 21)

Section 21.3 - Absence With Pay Sick Leave

R-1 Purpose

The primary purpose of sick leave is to provide a reasonable measure of protection against loss of income because of illness or other disability.

Note: The Federal Family and Medical Leave Act (FMLA) of 1993 gives eligible employees the right to up to 12 workweeks in a calendar year of unpaid leave, or paid leave charged to leave credits under certain circumstances, for reasons which in some cases qualify for use of sick leave under the Attendance Rules and negotiated agreements.

If the use of sick leave is for a qualifying purpose under the FMLA and such leave is designated as FMLA by the appointing authority, the FMLA guidelines in Appendix I of the Manual should be read in conjunction with this Section. Eligibility, use of leave, medical documentation, and the definition of family are some examples of conditions of leave pursuant to FMLA which differ from those provisions under the Attendance Rules. The federal guidelines are controlling when the leave is designated as FMLA and caution should be used in applying the language in this Section without reference to Appendix I.

Eligibility

Full-time annual salaried employees and those part-time annual salaried employees working a fixed number of hours five days per week are eligible to earn sick leave.

See Related Contract Provisions 26.1, C-5

Employees compensated on a per diem or hourly basis must have a regular work schedule of at least 3 3/4 hours per day five days per week and complete a "qualifying" service of 19 pay periods without a...

R-2

... break of more than one complete pay period before being eligible to earn sick leave.

See Related Contract Provisions 26.1, C-1

After attaining coverage under the Attendance Rules, such employees are eligible to earn sick leave in the same manner as annual salaried employees.

No employee is entitled to leave under this Section beyond the time at which his/her services would otherwise terminate by operation of law, rule or regulation.

A seasonal employee cannot be continued on sick leave beyond the end of the "season"; i.e., after his/her employment has ended.

Earning and Crediting Sick Leave

An employee compensated on an annual salary basis earns and is credited with sick leave at the rate of 1/2 day for each pay period in which he/she is in full pay status for seven of ten working days.

See Related Contract Provisions C-3

This is not a cumulative total of seven days but seven separate full days. (See Appendix C on Alternative Work Schedules for staff who are scheduled to work less than ten days per pay period and Appendix F for Managerial/Confidential employees enrolled in the Income Protection Plan.)

Employees compensated on a per diem or hourly basis are not credited with sick leave until completion of the nineteen pay periods of "qualifying" service. At that time they are credited with sick leave in the following manner:

See Related Contract Provisions 26.1, C-6

Add one-half day of sick leave for each of the nineteen pay periods of "qualifying" service in which such employee was in full pay status for seven of the ten working days plus any sick leave credits earned under the Attendance Rules prior to the per diem service but within this same period of continuous service.

R-3

Subtract from the total obtained in (1) any paid sick leave granted during the period of "qualifying" service under Section 18c of the Labor Law which provides for paid sick leave for certain State employees who are not covered by the Attendance Rules. (See Section 21.12, p.8.)

Thereafter, sick leave is earned and credited in the same manner as it is for annual salaried employees.

Annual salaried and per diem or hourly paid employees who work part-time and meet the eligibility requirements earn and are credited with sick leave on a prorated basis in the same ratio that the number of hours worked has to the normal workweek. For example, a half-time, half-pay employee working 20 hours a week, where the normal workweek is 40 hours, earns one-half full-time credits, or 2 hours a biweekly pay period.

Employees may not accumulate sick leave credits in excess of 150 days. After reaching this maximum, employees can earn credits only after the balance has been reduced to fewer than 150 days. Sick leave credits which employees would have earned beyond this maximum cannot be credited to them. (See Section 21.8, Workers' Compensation, for an exception.)

See Related Contract Provisions C-1

Use of Sick Leave Credits

See Related Contract Provisions C-6, C-8, C-11

Approved absences necessitated by personal illness or other disability, personal visits to a doctor or dentist, and illness or death in the employee's family may be charged to sick leave. In addition to visits to or treatment by doctors and dentists, visits to the following medical and physical practitioners may be charged against sick leave credits: Psychiatrists, Osteopaths, Physio and Physical Therapists, Podiatrists, Optometrists,...

R-4

...Psychologists, Chiropractors, Physician's Assistants, Nurse Practitioners, Christian Science Practitioners, and Social Workers doing psychological counseling.

See Related Contract Provisions C-6, C-8

The use of sick leave credits for absences necessitated by illness in the employee's family normally should be restricted to absences occasioned by the need for the services of the employee. It is not intended that sick leave credits be used to provide time off with pay when an employee absents himself/herself from work to assume housekeeping or homemaking duties normally performed by another member of the family. However, sick leave credits may be properly used if an employee absents himself/herself to provide direct care for members of the family who are ill. Sick leave credits may also be appropriately charged to accompany a family member to a medical appointment where the family member is unable to go alone (but not simply to provide transportation), or where the employee must serve as the responsible person to receive medical information from the family member's physician, or where, because of the nature of the medical procedures to be performed, the family member's physician requests the employee's presence. Depending on the circumstances involved, the appointing authority may approve or disapprove the use of sick leave for all or part of the absence. For example, if pregnancy of the spouse is involved, the appointing authority would normally approve the use of sick leave credits for the day of delivery and for the convalescent period immediately following hospitalization (generally about one week under normal circumstances). In the absence of unusual circumstances, other absences would generally be charged to credits other than sick leave for family illness.

See Related Contract Provisions C-11

For the purposes of this Section, the definition of family is any relative or relative-in-law regardless of residence or any persons with...

R-5

...whom an employee has been making his/her home. Charges against sick leave for absences caused by illness or death in one's family may not exceed fifteen days in any one calendar year. An absence to attend a funeral of someone other than a family member as defined herein may not be charged to sick leave credits.

See Related Contract Provisions C-6

For the purposes of use of sick leave for personal illness, pregnancy must be treated in the same manner as any other ordinary disability. Employees may not be required to report the existence of pregnancy prior to requesting leave under this Section. They may be encouraged to do so, however, where the employer, the employee, or the employee's physician believe that the nature of the duties performed is such that continued performance of those duties during pregnancy may be hazardous. (See Section 22.1, pp. 5-8.)

Up to 26 days of sick leave per calendar year may be used for the purpose of obtaining and training guide dogs by employees certified as visually handicapped by the New York State Commission for the Blind and Visually Handicapped or certified as blind (evidenced by visual acuity of 20/200 or less in the better eye with best correction or a visual field of 20 degrees or less) by an examining physician or licensed optometrist, and by employees certified as having a hearing impairment (manifested by a speech discrimination score of 40 percent or less in the better ear with appropriate correction) by a licensed audiologist or otolaryngologist.

If the employee does not produce the required certifications or if it is reasonably determined by the agency that the use of sick leave credits is unjustified for a particular absence, the use of such credits should be denied. The absence may then be charged to other appropriate credits or may be considered as authorized or unauthorized leave without pay.

R-6 Notification

An employee who is absent because he/she is sick should notify his/her supervisor on the first day, within two hours after the beginning of the workday.

The appointing authority may require earlier notification, but not more than two hours before the beginning of the workday, where the work is such that a substitute may be required.

See Related Contract Provisions C-9

This Rule does not provide any specific penalty for failure to report within the prescribed time limits. The appointing authority is free to enforce such requirements as he/she sees fit. However, the circumstances should be thoroughly considered before an employee is placed on leave without pay because he/she failed to give proper notice of his/her absence.

Minimum Units of Liquidation and Record Keeping

The appointing authority may regulate the units in which sick leave is used, except that sick leave may not be used in units of less than one-half hour.

See Related Contract Provisions C-5

Except in circumstances where substitutes are required, the use of sick leave credits in units of one-half hour is the most practical method to provide equitable use of sick leave credits for short-term absences.

Each agency should maintain adequate records for proper control and to identify the reasons for which sick leave is used. This will assist in the identification of patterns which suggest abuse of the use of sick leave credits; e.g., consistent use of such credits on Friday afternoons, Monday mornings and before and after holidays and vacations. When such a pattern exists, the appointing authority may require more than the usual proof of illness. The maintenance of accurate records will also assist in administering the use of sick leave credits for illness or death in the employee's family.

R-7 Documentation

The appointing authority may require such proof as may be considered satisfactory to justify the use of sick leave credits. Such evidence may include certifications from practitioners as described under Use of Sick Leave Credits, examination by a physician designated and paid by the agency, proof of hospitalization, etc.

See Related Contract Provisions C-12

Medical Examinations

The appointing authority may require an employee to be examined by a physician, at the agency's expense, as a condition of his/her returning to work from an illness. In lieu of, or in addition to, this medical examination, the appointing authority may require an employee to furnish a certificate from his/her attending physician.

See Related Contract Provisions C-16

When an agency exercises the option to require an employee to be examined by a physician selected by management, the State is obligated to pay both for the doctor and for the employee's actual and necessary travel expenses in accordance with the Comptroller's travel regulations. The employee remains in the same payroll status he/she is otherwise entitled to at the time of the examination (e.g., in duty status, charging credits, on leave without pay, etc.).

See Related Contract Provisions C-18

When in the judgment of the appointing authority an employee is unable to perform the duties of his/her position because of a disability (other than a disability resulting from an occupational injury or disease as defined in the Workers' Compensation Law) and leave under Section 72 of the Civil Service Law is contemplated, the employee may be required to be examined by a physician selected by the Department of Civil Service in accordance with Section 72. Based on the results of this examination, if the employee is...

R-8

...placed on such leave of absence and not reinstated within one year, he/she may be separated in accordance with Section 73 of the Civil Service Law. Agencies should refer to Section 2200, Separations and Leaves, of the State Personnel Management Manual for a discussion of Section 72 of the Civil Service Law.

If, as a result of any medical examination or certificate or judgment of the appointing authority, an employee who has voluntarily absented himself/herself from duty seeks to return and is denied based on the inability to perform his/her duties, the appointing authority should consult with the Department of Civil Service Counsel's office for guidance on appropriate procedure.

Transfer of Credits

All earned and unused sick leave credits are transferred with an employee when:

See Related Contract Provisions C-1

he/she moves from a position covered by the Attendance Rules to another position also covered by the Attendance Rules,
he/she moves to or from a position covered by the Attendance Rules to or from a position in the unclassified service of the State University (pursuant to Section 35 of the Civil Service Law) or to or from a position covered by the Attendance Rules for Institution Teachers, or
he/she moves to or from a position covered by the Attendance Rules to or from a position in an agency with which a prior reciprocal agreement has been made between such agency and the Department of Civil Service. (See Section 24.1, "Written Agreement Required for Transfer of Leave Credits," of this Manual.)

R-9

Sick leave credits transferred upon movement from a position with a basic workweek of 37 1/2 hours to a position with a basic workweek of 40 hours, or vice versa, should be converted to reflect the new workweek. 1125 hours (150 days) of sick leave earned in a position with a 37 1/2 hour workweek converts to 1200 hours for a 40 hour workweek. If the sick leave credits transferred are expressed in terms of days, the receiving agency can readily convert them to the appropriate number of hours.

Sick leave credits transferred upon movement between full-time and part-time items (with the same basic workweek of 37 1/2 or 40 hours) should not be converted but should be transferred in hours without increase or decrease. If such transfer causes the employee to exceed the maximum accruals allowed in the part-time item, he/she should not be deprived of credits earned but should not be credited with additional sick leave until his/her accruals are reduced below the allowable maximum in that item. If the movement involves items with different basic workweeks (e.g., a full-time item with a 37 1/2 hour workweek to a 1/2 time 1/2 pay item with a 20 hour workweek), sick leave should be converted as described above and then transferred in hours. (See Appendix D, Part-Time Employment for further information.)

Under no circumstances will direct payment for unused sick leave credits be made. However, certain State employees, after they retire, may continue coverage under the State health insurance plan and have the dollar value of their sick leave balance at the time of retirement applied toward the charges for health insurance (Section 167, Civil Service Law). Certain retirees may also be granted additional retirement service credit for accumulated and unused sick leave credits (Section 41, Retirement and Social Security Law).

R-10 Restoration of Unused Sick Leave Credits

All sick leave credits accrued and unused at the time of separation (for other than disciplinary reasons) are restored to employees who are:

See Related Contract Provisions C-2

reinstated or reemployed within one year of separation,
returned to the payroll from a leave of absence without pay of any duration,
reinstated or reemployed at any time while eligible for reinstatement from a preferred list (actual appointment from the preferred list is not necessary),
reinstated at any time in accordance with Sections 71 and 73 of the Civil Service Law, or
reinstated at any time by action of the Civil Service Commission in accordance with Section 5.4 of the Civil Service Rules, provided the appointing authority indicates in the request for reinstatement the amount of sick leave credits to be restored if the former employee is reinstated, and certifies that such restoration will be based on available time records maintained in accordance with the Attendance Rules.

Note: Although the determination of the adequacy of records supporting unused amounts of sick leave credits and the restoration of such credits is normally left to the appointing authority, the Department of Civil Service reserves the right to deny restoration where in its judgment the records are inadequate to support such action.

R-11

An employee's sick leave credit balance at the time of retirement is not reduced by either the retirement service credit or the health insurance premium payment credit the employee may receive at retirement.

See Related Contract Provisions C-2

Therefore, the sick leave credit balance at the time of retirement should be restored in full to an otherwise eligible employee who is reemployed following such retirement within one year or reinstated at any time by the Civil Service Commission or other process of law.

If an employee moves from a position subject to the Attendance Rules to a position not subject to the Rules and not covered by a reciprocal agreement adopted in accordance with Section 24.1 of the Rules, his/her sick leave credits cannot be transferred. (See p. 6 of this Section on transferring sick leave.) However, upon a subsequent return to a position subject to the Attendance Rules, and consistent with the limitations and restrictions described above, those leave credits should be restored. Because time records often are not retained for more than three years, employees who move to positions not subject to the Attendance Rules as described herein should be given a statement of their sick leave accruals upon such movement.

Related Legal Provisions

Section 18(c) of the NYS Labor Law, which authorizes appointing authorities to grant sick leave to certain State employees who are not otherwise eligible.

Section 167, Civil Service Law, which authorizes the credit against health insurance premiums of sick leave values at retirement.

Section 41, Retirement and Social Security Law, which authorizes retirement service credit based upon sick leave credits at retirement.

R-12

Section 35, Civil Service Law, which identifies state university professional service positions as unclassified.

Section 136.3, Civil Service Law, which exempts teachers from these Attendance Rules and authorizes the heads of the several agencies employing persons in teaching positions to establish attendance and leave regulations governing those employees.

Revision History	TM-13 - 5/94
All pages	New or Revised Material

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