Policy Bulletin No. 1993-05

Section 21.8 Workers' Compensation Leave - June 23, 1993

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TO: Personnel Officers
FROM: Josephine L. Gambino, Commissioner
SUBJECT: M/C Interim Workers' Compensation Program

The following material has been prepared to assist you in administering the workers' compensation program that applies to employees designated Managerial/Confidential for accidents occurring on or after July 1, 1992.

Questions should be directed to the Employee Relations Section of this Department at (518) 457-5167.

Introduction

Legislation in 1992 eliminated authorization from the State Finance Law for payment of the workers' compensation supplement to Managerial/Confidential (M/C) employees for job-related accidents sustained on or after July 1, 1992.

This, in effect, nullified the provisions of Part 89 of the President's Regulations which authorized the supplemental payment system for M/C employees. However, the provisions of the M/C Attendance Rules regarding accidents which occur on or after September 1, 1986, have not yet been amended and, therefore, continue to apply. Specifically, Section 28-1.8 subdivisions (p) through (y) continue in effect, although their application has been altered by the deletion of supplemental payments from the overall benefit.

In summary, this interim benefit for M/C employees continues to provide for a minimum of one cumulative year of disability leave, as provided under Section 71 of the Civil Service Law, or longer at agency discretion. During this absence, employees may use leave credits and sick leave at half-pay (or IPP benefits for those eligible) for all compensable absences during the leave. There is no advancement of leave; after exhaustion of credits and sick leave...

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...at half-pay eligibility, the employee is entitled to leave without pay. IPP enrollees, after exhaustion of sick leave credits or 14 calendar days of absence, whichever is greater, are eligible for short-term disability (STD) and/or long-term disability (LTD) as appropriate. Since employees remain on the payroll charging credits for the most part, the wage replacements from the State Insurance Fund will be credited to New York State for wages paid. Employees will receive wage replacements directly from the State Insurance Fund generally only during periods of leave without pay; employees receive no supplemental payments from the State. Upon return to work and following a Workers' Compensation Board Notice of Decision, the credits used by the employee will be restored to him/her for all periods (after the initial 14 calendar days of absence) during which New York State receives credit for wages paid. Credits used during the first 14 calendar days of absence are recredited to the employee upon return to work or separation, whichever occurs first, based on a determination by the SIF that the absence was compensable.

The purpose of this memorandum is to clarify this workers' compensation benefit available to M/C employees injured on or after July 1, 1992. These guidelines will continue to apply until such time as the M/C Attendance Rules are amended.

Benefits Under the Workers' Compensation Law

M/C employees who sustain job-related injuries on or after July 1, 1992, continue to be eligible for reimbursement of medical expenses and for wage replacement benefits from the State Insurance Fund under the Workers' Compensation Law. (New York State generally is credited with the wage replacement benefit for any periods during which the employee receives salary from the State; i.e., periods charged to leave credits or sick leave at half-pay.)

Waiting Period

The statutory waiting period under the Workers' Compensation Law continues to apply.

No wage replacement benefit is payable by the State Insurance Fund (SIF) if the absence due to a workers' compensation injury or disease does not exceed seven calendar days. If absence is for at least eight calendar days, but does not exceed 14 calendar days, SIF wage replacement benefits are payable beginning with the eighth calendar day of disability. Once absence due to a single injury or...

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...disease exceeds 14 calendar days, SIF wage replacement benefits are payable retroactively to the first day of disability. Employees are permitted to charge credits during the 14 calendar day waiting period. There is no authorization to advance credits. If the employee has no leave credits to charge or has exhausted his/her credits, the employee must be granted, upon request, sick leave at half-pay, if otherwise eligible, or be placed on leave without pay.

At the point the employee returns to work or separates, whichever occurs first, the employee is recredited with the accruals charged during the first 14 days of absence for days determined to be compensable absences by the SIF. This is the only circumstance under which an employee can be recredited under this Interim Program.

Absence Beyond the Waiting Period

For absences beyond the first 14 calendar days, employees must be permitted to charge leave accruals and, when leave accruals are exhausted, employees, if otherwise eligible, must be granted sick leave at half-pay upon request. (See "Income Protection Plan" below for a discussion of the treatment of absences for employees enrolled in the IPP.)

While charging leave accruals, employees are treated as any other employee charging credits for purposes of Civil Service law, rule and regulation (earning leave credits, etc.). Similarly, while on sick leave at half-pay, employees are treated as any other employee on sick leave at half-pay for these purposes.

Following exhaustion of leave accruals and sick leave at half-pay, employees must be placed on leave without pay and they are treated as any other employee on leave without pay. (See "Section 71 and Rule 5.9" below for duration of leave.)

Income Protection Plan (IPP)

Employees enrolled in the IPP must serve a waiting period of the greater of exhaustion of sick leave accruals or 14 calendar days before being eligible to receive disability benefits under the Income Protection Plan. (At employee option, other credits may be used as sick leave prior to receipt of IPP benefits.) Employees absent and receiving IPP benefits are treated as any other employee receiving IPP benefits for purposes of Civil Service law, rule and regulation.

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Claims for employees who are eligible for IPP benefits for job-related disabilities are processed as any other IPP claims. However, benefits paid under the IPP are reduced by any wage replacement benefits paid to employees pursuant to the Workers' Compensation Law.

Restoration of Leave Credits

Leave credits charged and sick leave at half-pay eligibility used for absences beyond the first 14 calendar days are restored to the employee following a Workers' Compensation Board Notice of Decision crediting New York State for wages paid. Credits restored are not prorated; the exact amount of credits charged (including full and partial days) is restored. Restored credits cannot be used to cover other absences due to the same injury or illness.

Where the restoration of credits causes an employee to exceed applicable maximums, he/she has one year from the date of return to work or restoration of credits, whichever is later, to reduce balances to applicable maximums. During this one-year time period, the employee continues to be eligible to earn additional leave credits.

Section 71 and Rule 5.9

The M/C Interim Workers' Compensation program in no way changes the provisions of Section 71 of the Civil Service Law which provide that an employee who is disabled as the result of an occupational injury or disease is entitled to a leave of absence for a minimum of one cumulative year unless found to be permanently disabled.

The cumulative year of mandatory leave includes periods of absence charged to leave credits and periods of sick leave at half-pay, periods of leave without pay and periods during which the employee is receiving benefits under the IPP.

Employees absent for one cumulative year because of an occupational injury or disease may be continued in employment at the discretion of the appointing authority, but are not entitled to be so continued.

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...

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...contained in the State Personnel Management Manual Policy Bulletin #93-02 dated May 12, 1993.

Controverted and Contested Claims

If the State Insurance Fund controverts or contests a claim, the agency cannot grant workers' compensation benefits until such time as the controversion is resolved in the employee's favor by the Workers' Compensation Board.

If the State Insurance Fund controverts a claim on the basis that the employee is disabled, but the disability is not job-related, the absence should be treated as ordinary disability. If the State Insurance Fund contests the claim on the basis that the employee is not disabled, the employee should be placed on unauthorized leave and directed to return to work. If the Workers' Compensation Board resolves the controversion or contest in the employee's favor, the employee should be retroactively granted any workers' compensation benefits to which he/she is entitled.

Benefit Administration

Agency procedures regarding reporting of accidents should be continued. Agencies should continue to report accidents, provide medical documentation and report changes in employee status to the State Insurance Fund.

There is no supplemental payroll process. Employees remain on the regular payroll, either charging leave accruals or using sick leave at half-pay eligibility, and are then placed on leave without pay. IPP enrollees remain on the payroll while charging credits and are then placed on STD or LTD as appropriate.

Agency procedures and requirements concerning medical documentation continue to apply.

Employee absences must be identified as workers' compensation on time records to ensure proper restoration of credits, where applicable, and to calculate length of absence.

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