Policy Bulletin No. 1994-02

Section 21.8 Workers' Compensation Leave - September 1, 1994

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TO: Personnel Officers
FROM: Virginia M. Apuzzo, Commissioner
SUBJECT: M/C Workers' Compensation Program - Effective September 1, 1994

The following material has been prepared to assist you in administering the Workers' Compensation Program that applies to employees designated Managerial/Confidential (M/C) for accidents occurring on or after September 1, 1994.

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

P-2 Introduction

Effective September 1, 1994, the Workers' Compensation Program for State employees designated managerial or confidential and subject to the NYS Civil Service Commission Attendance Rules changes. In summary, this 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 Income Protection Plan (IPP) benefits for those eligible, for all compensable absences. There is no advancement of leave; after exhaustion of credits and sick leave 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, STD or LTD. 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 on a prorated basis to him/her for all periods during which New York State receives credit for wages paid.

In addition, for the first cumulative year of absence, employees will be treated as though they're in full pay status for the purposes of accrual of leave credits, continuous service and retirement service credit. If employees are continued on the payroll beyond one year, they should be reverted to whatever status is appropriate for a nonoccupational disability absence (e.g., sick leave without pay, LTD).

Benefits Under the Workers' Compensation Law

M/C employees who sustain job-related injuries on or after September 1, 1994, 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.)

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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 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 sick leave without pay.

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. Following exhaustion of leave accruals and sick leave at half-pay, employees must be placed on sick leave without pay.

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 leave credits may be used prior to receipt of IPP benefits.) 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.

Status While Absent

Employees absent due to workers' compensation are to be treated as though in full pay status for the purposes of Civil Service Law, rule and regulation for the first year (12 cumulative months of absence).

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This means that employees continue to accrue leave credits throughout this period regardless of actual payroll status (full pay, half-pay, STD, LTD, leave without pay). Employees earn biweekly vacation; earn biweekly sick leave or are credited with sick leave on their IPP grant dates; are credited with personal leave on their personal leave anniversary dates; and are credited with vacation bonus days or additional vacation days for which they are otherwise eligible on their vacation anniversary dates. Workers' compensation absences count as time worked for the purposes of calculating sick leave at half-pay entitlement. Once eligible employees are placed on sick leave at half-pay, they remain in that status in spite of continuing to earn leave credits. These credits become available for use upon exhaustion of sick leave at half-pay or return to work, whichever occurs first (see Section 21.5, page 8 [R-8]). Likewise, once employees in the Income Protection Plan are placed on STD or LTD, they remain in that status in spite of continuing to accrue sick leave. Employees should not be removed from STD or LTD status to use such credits.

Employees are not eligible to observe holidays except during the seven calendar day waiting period if they are charging credits during that period. If a holiday does fall during the waiting period, the employee would observe the holiday and charge the other four days to leave credits. Employees are eligible to be credited with floating holidays which fall anytime during their absence.

Accrual maximums and expiration dates continue to apply during the employee's absence. Please note the exceptions in the next section of the memorandum concerning restoring credits.

Employees absent due to workers' compensation disabilities are not eligible for the Leave Donation Program nor hazardous duty pay.

Employees are considered to be in full pay status for continuous service purposes and for the purpose of retirement service credit and contributions normally made by the State and/or employee for the first year (12 cumulative months) of absence.

Restoration of Leave Credits

Leave credits charged and sick leave at half-pay eligibility used are restored to the employee following a Workers' Compensation Board Notice of Decision crediting New York State for wages paid. Credits restored are prorated based on the award credited to New York State for wages paid or 60 percent of the employee's gross salary, whichever is greater. Gross salary for the purpose of credit restoration is defined as the employee's base annual salary...

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...plus inconvenience and location pay and geographic and shift differential pay to which he/she was entitled at the time of the accident.

To determine what percentage of credits to restore, identify the employee's gross salary and calculate the percentage the SIF net monetary award represents. If it's greater than 60 percent, restore that percentage of credits used. If it's less than 60 percent, restore 60 percent of credits used. Each type of leave credit charged (e.g., sick leave, annual leave) should be prorated and restored separately.

Example: An employee's gross annual salary is $46,800, biweekly gross salary is $1,800. The SIF wage replacement credited to New York State was $400 per week. Dividing $400 by $900 (weekly gross salary), the SIF credit represents 44 percent of gross salary. Since 60 percent is greater, restore credits at the 60 percent level.

Where the restoration of vacation or sick leave 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. Personal leave cannot be restored if the employee's anniversary has passed since these credits were charged. There are no limits on the restoration of holiday leave for M/C employees. Floating holidays, however, cannot be restored if more than a year has passed since they were credited.

Restored credits cannot be used to cover other absences due to the same injury or illness.

Section 71 and Rule 5.9

This in no way changes Section 71 of the Civil Service Law which provides 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...

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...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 to implement Section 71, are contained in the State Personnel Management Manual, Section 2200, 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 directed to return to work and placed on leave without pay if he/she does not return. 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. Rule 5.9 procedures concerning employee notifications continue to apply. If the absence also qualified as a serious health condition under the Family and Medical Leave Act (FMLA) and the employee is eligible for an FMLA leave, agencies should designate the absence as FMLA and properly notify the employee.

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.

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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. Once an employee exceeds 12 cumulative months of absence, the benefit protections cease and the employee is treated in the same manner as any other employee absent on ordinary disability.

Payroll procedures will be detailed in a memorandum from the Office of the State Comptroller. Health insurance procedures will be explained in a memorandum from the Employee Benefits Division of this Department.

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