Absence With Pay (Part 21)

Section 21.8 - Workers' Compensation Program - (Part 2 of 3, C-10 through C-19)

[Go to Part 1; C-1 through C-9]

[Go to Part 3; C-20 through C-33]

C-10

Introduction

The discussion on pages C-10 through C-19 [See Part 1 here] is a description of the workers' compensation leave program which applies to the following employees:

1. Employees in ASU, ISU, OSU, PS&T and RRSU who have Attendance Rules coverage and whose absence is caused by a workers' compensation injury or disease resulting from an incident that occurred before April 1, 1986.
2. Employees in the Security Services and Security Supervisors Units who have Attendance Rules coverage and whose absence is caused by a workers' compensation injury or disease regardless of the date of the incident.

Contract provisions concerning workers' compensation leave are virtually identical for all units with the following exceptions:

For Institutional Services Unit employees, denial of workers' compensation leave for the reason that the employee could report to work on a full-time or part-time basis must be based on a medical report submitted by a physician appointed by the Civil Service Commission and not employed in the same department or agency as the employee. The proviso applies only to those cases where the employee is on compensation leave and the issue involves his/her ability to report for duty on a full-time or part-time basis. It does not apply to medical examinations required under Section 21.8 of the Attendance Rules or under Article 11 for other purposes.

For Security Supervisors and Security Services Unit employees there is no provision for a waiting period before granting workers' compensation leave with full pay without charge to credits.

In addition, the article on jury duty (14.8[c]) in these two agreements requires the appointing authority to reschedule midnight or afternoon shift employees to a normal day shift for the day on which they are required to attend a workers' compensation hearing, provided the employee submits a written request for the shift change at least three days prior to the scheduled hearing. The employee's written request should be accompanied by a copy of the notice of the hearing.

Once changed to the day shift, employees are required to be at work except for the actual time of attendance at the workers' compensation hearing, including necessary travel time.

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C-11

Eligibility

An employee who is eligible for and is granted a leave of absence up to a cumulative total of one year, pursuant to Section 21.8 of the Attendance Rules (see Section 21.8, pages 1 [R-1] and 2 [R-2]), is entitled to such leave of absence unless:

1. the appointing authority has good and sufficient reason to believe that the employee's disability is not job related or is primarily due to some preexisting medical condition;
2. the appointing authority has good and sufficient reason to believe that the employee could return to work on a full-time or part-time basis (for employees in the Institutional Services Unit, such belief must be based exclusively on a medical report from a physician appointed by the Civil Service Commission who is not employed in the same agency as the employee);
3. the employee's services would have been terminated under the law (e.g., position abolished, temporary service funds exhausted, eligible list certified, permanent disability, etc.); or
4. the employee's claim for benefits is controverted by the State Insurance Fund. (In such a case, the employee would not be eligible for leave under Section 21.8 in any event until or unless the Workers' Compensation Board resolves the controversion in the employee's favor and the controversion was the agency's sole reason for denying the workers' compensation leave.)

Denial of Leave Benefits

When an employee is denied workers' compensation leave, he/she must be advised in writing of such denial and the reasons therefore within the time frames and guidelines established pursuant to Rule 5.9 of the Rules for the Classified Service. As additional reasons for withholding compensation leave with pay are ascertained these should be forwarded to the employee. Whenever all of the acknowledged reasons for denying compensation leave with pay are resolved in favor of the employee (as determined by the appointing authority or pursuant to the grievance procedure), the employing agency may not continue withholding leave for reasons not previously given the employee in writing.

If an employee is granted workers' compensation leave and the appointing authority subsequently determines that he/she was not entitled to the leave, the appointing authority is obligated to provide the same written notice as in the case of initial denial.

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C-12

Where the sole stated reason for denying workers' compensation leave is that the State Insurance Fund has controverted the case, the agency may no longer continue to withhold workers' compensation leave if the Workers' Compensation Board rules in favor of the employee. However, if controversion was only one of the stated reasons for denying workers' compensation leave, the agency may continue to withhold workers' compensation leave despite the fact that the Workers' Compensation Board has resolved the controversion in the employee's favor.

Pay During Leave - Full-Pay

The subject contract provisions on workers' compensation leave mandate the extension of compensation leave with pay without charge against credits for up to six months before the employee is required to charge absences to leave credits, unless the employee elects to use his/her credits first.

An employee granted workers' compensation leave with pay shall be granted such leave without charge to credits (up to a cumulative total of six calendar months) and, unless he/she elects to use leave credits, may not be required to charge such absences against credits until he/she is absent in excess of six months (cumulative total). An employee may elect to use credits while absent on compensation leave for all or part of the period of absence. (Normally an employee would elect to do so only when he/she has accumulated maximum or near maximum leave accruals and wishes to avoid losing additional leave accruals while on compensation leave with pay. Agencies should advise employees of their leave balances during a period of absence and alert them to their rights.)

Pay During Leave - Half-Pay

The appointing authority must grant paid leave in the order prescribed by the contract provisions, including the extension of sick leave at half-pay. However, sick leave at half-pay may not be granted until the employee has first exhausted eligibility for compensation leave with pay without charge to leave credits and then his/her own leave accruals.

While sick leave at half-pay must be granted if the employee continues on leave after exhausting leave credits, the amount of sick leave at half-pay extended cannot exceed that which is otherwise available to the employee pursuant to Section 21.5 of the Attendance Rules.

Section 71 Civil Service Law

Section 71 provides that an employee who is disabled as a result of an occupational injury or disease is entitled to a leave of absence for a minimum of one cumulative year (365 calendar days), unless found to be permanently disabled.

The cumulative year of mandatory leave includes periods of leave with pay (with or without charge to leave credits), periods of sick leave at half-pay and periods of leave without pay. For calculation of the "cumulative year" see page 3 [R-3] of this Section.

C-13

An employee absent on workers' compensation leave for a cumulative total of one year may have the leave ended as provided by Section 71 and in accordance with Rule 5.9 of the Rules for the Classified Service, irrespective of the employee's remaining balance of leave credits or eligibility for sick leave at half-pay. Nothing in the contract items should be construed to require extension of compensation leave beyond that required under law or rule. However, an employee who is granted leave beyond the one-year period is entitled to the paid leave benefits provided by the Attendance Rules and negotiated agreements.

An employee entitled to compensation leave with pay (with or without charge to leave credits) is entitled to leave irrespective of whether the employee is absent for a full day, for less than a full day, for a block of time or for intermittent absences.

Procedural guidelines for the implementation of Rule 5.9 of the Rules for the Classified Service which details the notification and appeal provisions required by Section 71 are contained in the State Personnel Management Manual Policy Bulletin #90-02 [Since replaced by Policy Bulletin #93-02 in 2200 Separations and Leaves] dated July 5, 1990.

Return to Duty on a Reduced Schedule or to a Limited Duty Assignment

An employee may be denied compensation leave with and/or without pay if the appointing authority has good and sufficient reason (e.g., competent medical evidence) to believe that the employee is not so disabled as to prevent him/her from reporting for work. (For employees in the Institutional Services Unit, such denials of leave will be based on medical examinations and reports made by a physician designated by the Employee Health Service of the Department of Civil Service.)

An employee who is not able to return to duty and work his/her full normal work schedule may, at the discretion of the appointing authority, be allowed to return to modified duty. The employee might work on a reduced schedule or limited duty for a brief or extended period of time pending full recovery. The employee, however, is not entitled to return to duty until he/she is able to perform the normal and regular duties of his/her position working his/her normal work schedule. If the employee is allowed to return on modified duty, such employee may, at the discretion of the appointing authority, be granted compensation leave with pay (subject to the cumulative six-month limitation) to cover the difference between the hours worked and the number of hours in the normal workday or workweek.

In the case where an employee is allowed to return to work on a reduced schedule or to a limited duty assignment, the appointing authority should specify in writing the duration of the arrangement. If the employee is not able to return to full duty status at the end of this period, the appointing authority must decide whether to continue the arrangement for an...

TM-6 - New or Revised Material - January 1991

C-14

...additional limited period or to return the employee to full-time workers' compensation leave.

Earning Vacation and Sick Leave Accruals, Crediting Personal Leave and Holiday Observance

These contract provisions do not provide any benefit not already provided under the Rules or other contract provisions. Upon request, employees are entitled to interrupt workers' compensation leave with pay without charge to leave credits at any point in order, for example, to charge vacation or personal leave to avoid exceeding the allowable maximum or forfeiting personal leave prior to their personal leave anniversary date. Agencies should advise employees of their leave balances during a period of absence and alert them to their rights to request use of leave credits. There is no provision for employees in the ASU, ISU, OSU, Security Services, or Security Supervisors Units who are on workers' compensation leave with pay without charge to credits to automatically exceed the vacation maximum. PS&T and RRSU represented employees retain their rights under the contract to exceed the vacation maximum (except on April 1 of each year) while on workers' compensation leave with pay without charge to credits. See p.4 [R-4] for a further discussion of entitlement to these benefits.

Reimbursement to State

An employee allowed compensation leave with pay without charge to leave credits shall be required to reimburse the State for such paid leave from current or subsequent accumulations of leave credits if it is subsequently found that the employee was not entitled to such paid leave. For example, an employee on compensation leave with pay without charge to credits for 15 days who is subsequently determined to have been absent from work for reasons not related to an on-the-job injury would owe the State 15 days of leave accruals and would be required to make repayment in a manner devised by the agency.

Restoration of Leave Credits

See p. 4 [R-4] of this Section for a complete discussion of restoration of leave credits for employees who have been granted workers' compensation leave pursuant to the Rules and agreements. Should the restoration of leave credits bring an employee's balances over the allowable maximums, the employee will have one year from the date of restoration or return to work, whichever is later, to reduce the balances to the allowable maximums. This provision is considered to supersede Article 10.5 of the ASU agreement, 10.6 of the ISU agreement, 10.5 of the OSU agreement, 12.4(c) of the PS&T agreement and 12.4(a) of the RRSU agreement on vacation maximums. Credits restored pursuant to these provisions are not lost on March 31.

TM-6 - New or Revised Material - January 1991

C-15

Medical Examinations

See pp. 5 [R-5] and C-30 of this Section for information on medical examinations. The State Insurance Fund (SIF) has a program which includes priority medical examinations following accidents or incidents and comprehensive medical examinations for long-term or problem cases. This program is available to State agencies for all employees who claim occupational illness or injury. Details are available from the appropriate SIF Regional Office.

It should be stressed that absences in connection with occupational injuries are subject to the same medical substantiation requirements as are other absences chargeable to sick leave. Acceptable medical documentation should be obtained when making the decision to grant workers' compensation leave, at appropriate intervals throughout the leave and as a condition of return to work.

Waiting Period

The agreements for ASU, ISU, OSU, PS&T and RRSU provide for a ten-workday waiting period for employees who are granted workers' compensation leave in accordance with relevant contract provisions for injuries/diseases which began prior to April 1, 1986. Nothing in the subject contract articles should be construed to require the extension of workers' compensation leave under Section 21.8 of the Attendance Rules or compensation leave with pay under the negotiated agreements in any case where the leave would not otherwise be approved. The ten-workday waiting period and the provisions for advancing of leave credits apply only to persons granted such leave in accordance with the Attendance Rules and the agreements.

Determination of Waiting Period

An employee granted workers' compensation leave with pay shall, for each separate injury or disease, charge the first ten workdays of compensation leave in any one calendar year or in any one continuous period of leave to leave accruals, if available. If the employee is on leave for a continuous period spanning successive calendar years, he/she is subject to the ten-workday waiting period at the beginning of his/her absence in the first year but not for another ten days during the first ten "workdays" of the second year. However, if the employee returns to work during the second year and is subsequently absent later that same year, the employee must again charge the first ten workdays of absence in the second calendar year to leave accruals. Although the ten-workday waiting period is imposed for each separate accident or incident and for each calendar year for each separate accident or incident, an employee may not be required to charge more than ten workdays in any one calendar year to accrued credits for...

TM-6 - No Substantive Changes - January 1991

C-16

...absences attributable to the same accident or incident. An employee absent intermittently each year for five years, because of a disability arising out of an accident which occurred in the first year, is required to charge the first ten workdays in each of those five years to accrued credits. An employee who suffers three separate injuries or diseases as a result of three separate accidents or incidents in one calendar year is subject to the ten-workday waiting period for each separate accident or incident for a total of 30 workdays during that calendar year.

Determination of Waiting Period for Employees Who Work Less Than Five Days Per Week

For an employee who works on a part-time basis or on a full-time basis but for less than five days a week, the total amount of leave charged during the waiting period per accident per calendar year shall not exceed the number of hours normally and regularly worked by the employee in a biweekly pay period; i.e., the usual waiting period for full-time employees is 75 or 80 hours and for 1/2 time 1/2 pay employees, it is 37 1/2 or 40 hours.

Waiting Period Must Be Charged to Available Credits

The requirement that the waiting period be charged to credits (as opposed to leave without pay) is not optional so long as leave credits are available.

Advancing of Credits to Cover Absence During Waiting Period

In accordance with contract provisions, the appointing authority shall advance leave credits to any employee who normally earns and accumulates leave credits if the employee does not have sufficient accruals to cover the ten-workday waiting period unless the employee advises the appointing authority, in writing, that he/she does not wish to be advanced credits and prefers to go on workers' compensation leave without pay. An employee who does not earn and accumulate leave credits (e.g., a part-time annual salaried employee working less than half-time and less than five days a week) and has no available accruals against which to charge the waiting period must be placed on workers' compensation leave without pay for the ten workdays.

All credits advanced under this Section must be repaid by the employee from subsequent leave accumulations at a rate and in a manner determined by the appointing authority. In no event can credits so advanced for any one accident or incident in any one calendar year exceed the number of hours normally and regularly worked by the employee in a biweekly pay period--75 or 80 hours for full-time employees or 37 1/2 or 40 hours for 1/2 time 1/2 pay employees. (The outstanding unrepaid leave credits advanced to any...

TM-6 - No Substantive Changes - January 1991

C-17

...employee shall not at any time exceed a cumulative total of ten workdays or the number of hours normally and regularly worked by the employee in a biweekly pay period and leave credits should not be advanced in any case where repayment cannot possibly be made by the employee; e.g., where the employee's services are expected to terminate during or at the close of the waiting period.)

No Restoration of Credits Used During Waiting Period

When the employee is required to serve a waiting period, the subject contract articles prohibit the restoration of leave credits to the employee as otherwise provided in Section 21.8 of the Attendance Rules and in the negotiated agreements if the credits were used to cover absences during a ten-workday waiting period. In no event may credits used during the first ten workdays of a compensation leave be restored to the employee even if the Workers' Compensation Board rules in his/her favor. Pursuant to a court decision (Jefferson decision), where the employee is required to serve a waiting period, the workers' compensation wage award for the waiting period is no longer credited to New York State as reimbursement for wages paid but is paid directly to the employee. (In cases where the waiting period is initially charged to credits and is subsequently waived or suspended, the employee's leave record is reconstructed. See C-19.)

Hearings or Ordered Medical Examinations During Waiting Period

Absences necessitated by attendance at Workers' Compensation Board or State Insurance Fund-ordered hearings or ordered medical examinations shall not be charged against leave credits even though they occur during the ten-workday waiting period. If an employee is required to attend a hearing or examination during a ten-workday waiting period, time off for attendance including reasonable travel time should be charged as workers' compensation leave with pay and the balance of his/her absences during that ten-day period charged against leave credits. If, for example, the employee is necessarily absent at a Board ordered hearing for two full days during a ten-day waiting period, eight days would be charged against leave credits and two days as workers' compensation leave with pay without charge to leave credits--the waiting period is not extended by two workdays. These absences to attend hearings or ordered medical examinations are charged against the six-month maximum of workers' compensation leave at full pay.

Holidays Which Fall During Waiting Period

When an employee is required to serve a waiting period and a holiday occurs during the waiting period, the absence on that day should be charged as a holiday and not against credits; i.e., the waiting period would consist of nine days charged to sick leave credits and one day as a holiday.

TM-6 - No Substantive Changes - January 1991

C-18

Suspension of Waiting Period

The subject contract provisions provide for suspension of the ten-workday waiting period under the following conditions:

1. If an employee is required by a physician to be admitted to a hospital as an inpatient at any time during the first ten consecutive workdays following injury or onset of disease, the normal waiting period is automatically suspended and he/she is not required to charge the first ten days of absence to leave credits. If an employee is similarly hospitalized at any time during the first ten consecutive workdays of related absences in subsequent years, the waiting period normally applied during those ten days is also suspended.
2. If an employee is necessarily absent on workers' compensation leave for 20 or more consecutive workdays at any time following injury or onset of disease, the waiting period for that calendar year is automatically suspended. It is also suspended if the employee is absent for 20 or more consecutive workdays in subsequent years; i.e., the waiting period is not applied in any calendar year during which the employee is necessarily absent for 20 or more consecutive workdays in that calendar year.

Waiver of Waiting Period

An employee necessarily absent from duty because of an occupational injury or disease may, within 45 calendar days of the occurrence of the injury or disease or first day of related absence, make written application for waiver of the ten-workday waiting period. If the request for waiver is approved by the department or agency head, the employee is not required to serve the normal waiting period. These requests should not be unreasonably denied. (Denial of a waiver request is not grievable or otherwise reviewable.) For related absences in subsequent calendar years, waiver applications must be filed within 45 calendar days of the first day of absence in each calendar year.

In cases where the appointing authority has no doubt concerning the legitimacy of the employee's claim for workers' compensation leave, and, in fact, has granted workers' compensation leave to the employee, and would have granted a timely request by the employee for a waiver of the initial ten-day charge, the appointing authority should grant the employee's request for a waiver even though the request is not made within the 45-day time limit specified in the agreement. (See GOER Memorandum OER-83-3, dated April 1, 1983.)

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C-19

Reconstruction of Leave Record Following Waiver or Suspension of Waiting Period

Where the employee has charged the ten-workday waiting period to leave credits and a waiver request is subsequently approved, or the employee qualifies for suspension of the waiting period, the agency reconstructs the employee's leave record as though workers' compensation leave with pay without charge to credits had been granted from the first date of absence. Inasmuch as this is a reconstruction or correction of a leave record and is not a restoration of credits as contemplated in Section 21.8 of the Attendance Rules and related contract provisions, the employee is entitled to use credits originally charged in connection with the waiting period for absences resulting from the same injury or illness.

TM-6 - No Substantive Changes - January 1991

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