Policy Bulletin No. 2002-01

Section 26.3 Rules Applicable to Employees in Negotiating Units - January 22, 2002

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To: Manual Holders
From: William Doyle
Director, Staffing Services Division
Subject: Contract Implementation Memorandum - Attendance and Leave Items in 1999-2003 Negotiated Agreements with NYSCOPBA and Council 82

ATTENDANCE AND LEAVE ITEMS

1999-2003 Agreement Between the State of New York and the New York State Correctional Officers and Police Benevolent Association for employees in the Security Services Unit (SSU)

1999-2003 Agreement Between the State of New York and Council 82 for employees in the Security Supervisors Unit (SSpU)

Introduction

The following material has been prepared to assist you in implementing attendance and leave provisions contained in the 1999-2003 State/NYSCOPBA Agreement and the 1999-2003 State/Council 82 Agreement. References to applicable sections of the State Attendance and Leave Manual (Manual) are included. Questions concerning this material may be directed to the Attendance and Leave Unit of this Department at (518) 457-2295.

Effective Dates

These provisions are effective October 27, 2000 for employees in the Security Services Unit and July 31, 2000 for employees in the Security Supervisors Unit, the respective dates of ratification of these Agreements, except as follows:

Benefit	Date
Employee Organization Leave	April 1, 1999
200 days sick leave applied toward health insurance in retirement	January 1, 2000
Leave Donation Program	SSU - December 5, 2000 SSpU - December 12, 2000

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Subject: Confidentiality of Medical Documentation
Unit and Item: SSU Bill of Rights; SSpU Bill of Rights
Manual Reference: Section 21.3, pp. C-12 through C-13

This provision confirms the requirement that medical documentation must be handled in a confidential manner to prevent perusal by unauthorized persons or disclosure of content to unauthorized persons. This provision does not require the withholding of information reasonably required by appropriate agency staff in the exercise of their normal and regular responsibilities. However, in all cases, great care should be exercised to protect employees against the inappropriate dissemination of or access to medical information.

Subject: Holiday Observances
Unit and Item: SSU Article 16.4(b)
SSpU Article 16.4(b)
Manual Reference: Section 21.1, Policy Bulletins 88-01 and 89-01

This provision extends to employees in the SSU and SSpU the same benefit available to employees in the ASU, ISU, OSU, DMNA and PS&T Units. It provides alternate observance dates when Christmas Day and New Year's Day fall on Sundays and, under the General Construction Law, are observed on the following Mondays.

Specifically, employees in these units whose regular work schedule includes Sunday, December 25 and/or Sunday, January 1 shall observe these holidays on those dates and, in that event, Monday, December 26 and Monday, January 2 shall not be considered as holidays for them.

Employees in these units for whom Sunday, December 25 and Sunday, January 1 are pass days will observe Christmas on Monday, December 26 and New Year's Day on Monday, January 2.

A regularly scheduled workday is a day on which the employee is normally scheduled to work as part of his/her 37.5 or 40-hour basic workweek. It does not mean a day that is scheduled as the employee's pass day but on which the employee is scheduled or directed to work on an overtime basis.

Subject: Employee Organization Leave
Unit and Item: SSU Article 5.3
Manual Reference: Section 21.12, pp. C-19 through C-28

In order to permit more flexibility in use of EOL for internal union business, Article 5.3(a) has been modified to eliminate allocation of EOL days by specific category. However, the total number of days of non-cumulative EOL allowed to attend meetings for internal administrative...

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... functions and policy committees during each year of the agreement - 740 days - continues unchanged and requests continue to require approval of GOER.

The language in Article 5.3(c) has been changed to reflect the fact that NYSCOPBA holds Executive Assembly meetings, not union conventions.

Article 5.3(e) has been modified to better reflect NYSCOPBA's administrative structure. Specifically, the Union Negotiating Committee shall not be comprised of more than one Union committee member from any one facility or region eligible to receive leave for the purpose of collective negotiations for a successor Agreement, except that this restriction shall not apply to Chairs of Standing Committees. Article 5.3(f) has been modified to increase the number of days of advance notice from 5 to 14 which the union must provide to GOER in connection with requests to use EOL pursuant to 5.3(a). However, GOER retains the flexibility to approve late requests.

Subject: Employee Organization Leave
Unit and Item: SSpU Article 5.3
Manual Reference: Section 21.12, pp. C-19 through C-28

In order to permit more flexibility in use of EOL for internal union business, Article 5.3(a) has been modified to eliminate allocation of EOL days by specific category. However, the total number of days of non-cumulative EOL allowed to attend meetings of the Union's Executive Board, policy committees and other statewide Council 82 meetings during each year of the agreement - 142 days - continues unchanged and requests continue to require approval of GOER.

Article 5.3(e) has been modified to provide that EOL for the purpose of entering into collective negotiations for a successor agreement shall not be granted to more than one Union committee member from any one facility, except that this restriction shall not apply to the Council President, Corrections and Law Enforcement Policy Chairs and the President of the Corrections Lieutenants Local.

Article 5.3(f) has been modified to increase the number of days of advance notice from 5 to 7 which the Union must provide to GOER in connection with requests to use EOL pursuant to 5.3(a). However, GOER retains the flexibility to approve late requests.

Article 5.3(g) reflects changes in the internal accounting of usage of EOL pursuant to 5.3(a). The new language provides that, upon the request of the Union, GOER shall provide the Union a statement showing the remaining EOL available for the current Agreement year pursuant to paragraph 5.3(a).

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Subject: Discipline
Unit and Item: SSU Article 8.4(a)(3)
SSpU Article 8.4(a)(3)
Manual Reference: Section 22.1, pp. C-1 through C-2

Employees in these units are no longer required to serve a waiting period prior to being permitted to charge appropriate leave credits during a period of disciplinary suspension. Previously, employees were required to wait 20 calendar days before leave credits could be charged. Appropriate leave credits are previously accrued credits other than sick leave. The use of appropriate leave credits is now available for disciplinary suspensions under both 8.4(a)(1) and 8.4(a)(2). Previously the use of leave credits was not available in connection with suspensions under 8.4(a)(2) where the employee has been charged with the commission of a crime. Employees who wish to exercise the option to charge leave credits must provide written notification to their supervisor.

As is the case for all negotiating units which have this provision, employees in these two units who exercise their contractual option to charge credits during a period of disciplinary suspension continue to be in leave without pay status.

They do not earn leave credits although this charging of credits places them in full pay status for the required number of days per pay period that would normally entitle them to earn accruals. Moreover, these employees are not eligible to observe holidays which fall during a period of disciplinary suspension charged to credits. Thus, in a pay period in which a holiday fell, the employee would be required to charge ten days of leave credits rather than nine.

If the employee's personal leave anniversary date falls during a period of disciplinary suspension, regardless of whether or not the employee elects to charge leave credits, the employee's personal leave anniversary date changes to the date the employee returns from disciplinary suspension to regular pay status and the employee is credited with his/her personal leave days on the new personal leave anniversary date. In other words, the personal leave anniversary date is adjusted in the same manner it would be if the employee were in any other leave without pay status when his/her personal leave anniversary date fell.

The vacation anniversary date is also adjusted in accordance with normal leave without pay provisions, regardless of whether or not the employee on disciplinary suspension opts to charge credits. Specifically, if the disciplinary suspension is under six months, the vacation anniversary date remains unchanged and, if the vacation anniversary date falls during the period of disciplinary suspension, the employee is credited with vacation bonus days or additional vacation days upon return from disciplinary suspension to regular pay status. If the disciplinary suspension exceeds six months, the vacation anniversary date is adjusted and the employee is credited with vacation bonus days/additional vacation days on that adjusted anniversary date.

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This provision specifically excludes use of sick leave during a period of disciplinary suspension. The suspension takes precedence over an illness or disability an employee may develop during such time. Once an employee exhausts all available credits other than sick leave, he/she is placed on suspension without pay regardless of any existing ordinary disability or available sick leave credits.

Upon an award of back pay for a period during which leave credits were charged, leave accruals so used must be restored to the employee. This is accomplished by reconstructing the employee's leave records for the period covered by the back pay award. If the personal leave and/or vacation anniversary dates were adjusted because of the disciplinary suspension, this reconstruction of the employee's leave records includes a return to the original (unadjusted) personal leave and/or vacation anniversary dates and the employee is credited with personal leave and vacation days as appropriate on those dates. Personal leave is not restored if the personal leave anniversary date on which such credits would have lapsed has passed. There is no maximum limit on the restoration of vacation credits under this provision and the employee is deemed to have exercised his/her rights under Article 14.1, which provides an exception to the 40-day vacation maximum, but credits in excess of 40 days may not be carried forward to October 1st.

Subject: Sick Leave Accumulation
Unit and Item: SSU Article 14.4
SSpU Article 14.4
Manual Reference: Section 21.3, pp. 11 [R-11], C-1 through C-2

Employees in these units may apply up to 200 days of accrued sick leave credits toward the cost of health insurance in retirement for retirements occurring on or after January 1, 2000. The State has negotiated to increase the number of accrued and unused sick leave days which may be used as retirement service credit at time of retirement from 165 to 200 days.

Subject to applicable maximums, the same accrued sick leave days can be applied for both purposes. Application of sick leave balances for these purposes provides benefits based on an employee's sick leave balance at time of retirement, but does not actually liquidate those credits. Therefore, employees who return to State service within one year following retirement or who are reinstated at any time by the Civil Service Commission or other process of law are entitled to have their sick leave balance restored in full, despite the fact that they received retirement service credit and credit applied toward their health insurance premiums in retirement based on that sick leave balance.

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Subject: Jury Duty
Unit and Item: SSU Article 14.8
SSpU Article 14.8
Manual Reference: Section 21.9, pp. 1 [R-1], C-1 and Policy Bulletin No. 98-01

Changes in the language of this provision were made to conform to amendments to Section 21.9 of the Attendance Rules which were effective February 4, 1998. These contract provisions do not provide any leave privileges not already available under the Attendance Rules. They do, however, extend these privileges to employees in these units who may not be subject to the Attendance Rules. They also make appointing authority determinations concerning employee requests for jury leave or leave for court ordered appearances for employees in these two units subject to the contract grievance procedure.

Specifically, overtime ineligible employees who are required to appear as a witness in response to a subpoena or other order of a court or quasi-judicial body for any period of less than a workweek are entitled to leave with pay for such appearance, even if the employee is a party to the action (defendant or plaintiff). Such employees are not eligible for paid leave for absences of a full workweek if they are a party to the action. Overtime eligible employees continue to be ineligible for paid leave for absences of any duration if they are parties to the action.

For this purpose, a workweek is based on the Thursday through Wednesday payroll workweek and includes all days in the employee's normal work schedule that fall within that Thursday through Wednesday workweek period.

For example, an overtime ineligible employee who is a party to the action and is required to appear as a witness from Monday through Friday is eligible for paid leave for this entire five-day period since three days (Monday through Wednesday) fall in one workweek and two days (Thursday and Friday) fall in the second workweek. The employee was therefore absent for less than a full workweek in two separate workweeks. If this employee were required to appear as a witness from Thursday through the following Thursday (a workweek and a day), the employee is not eligible for paid leave for the Thursday through Wednesday workweek but would be eligible for paid leave for the single day (Thursday) falling in the second workweek.

This provision is nullified if there is a change in the FLSA, in which case overtime ineligible employees, like overtime eligible employees, do not receive paid leave if they are parties to the action.

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Subject: Medical Verification
Unit and Item: SSU Article 14.11
SSpU Article 14.11
Manual Reference: Section 21.3, pp. C-16 through C-18

Changes in the language of this provision were made to conform the language to that applicable to employees in CSEA Units. The manner in which this benefit is to be administered remains unchanged.

Specifically, this Article refers to medical examinations required of employees in accordance with Subdivision (e), Section 21.3 of the Attendance Rules. This Article does not apply to workers' compensation injuries or to actions pursuant to Section 72 of the Civil Service Law. This Article confirms the appointing authority's right to require an employee who has been absent due to personal illness, as a condition of returning to work, to undergo a medical examination at the appointing authority's expense by a physician selected by the appointing authority. This Article is designed to provide specific protection from loss of income when employees are denied return to duty because of employer-caused delays in the scheduling of medical examinations as a condition of return to work.

When an employee in this unit has been absent because of illness or injury, he/she may be required to provide medical documentation confirming his/her fitness for duty and to submit to a medical examination by a physician selected by the appointing authority as a condition of return to work. If an employee is required to submit to such a medical examination, the 20 workdays within which the appointing authority is expected to complete the examination should be calculated as follows:

If an employee submits medical documentation stating fitness for duty and giving a return to work date which is ten workdays or fewer from the date the documentation is submitted, the appointing authority has a total of 20 workdays from receipt of the notice to complete the medical examination. This includes the ten workdays or fewer of advance notice and a sufficient number of workdays beyond the proposed return to work date to total 20 workdays. In other words, if the employee gives less than l0 days' notice, the appointing authority has 20 days from the date of notice to complete the exam or the employee is put in pay status without charge to leave credits on the 21st day from the date of notice.

If an employee submits medical documentation stating fitness for duty and giving a return to work date which is more than ten workdays from the date the documentation is submitted, the appointing authority has from receipt of the notice to a maximum of ten workdays beyond the expected date of return to complete the examination. In other words, if the employee gives more than ten days' notice, the appointing authority has ten days beyond...

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... the specified return date to complete the exam or the employee is put in pay status without charge to leave credits on the 11th day following the return date.

If no decision is reached concerning the employee's request to return to duty within the time limits, the employee shall be placed on leave with pay without charge to credits and not allowed to return to duty. However, leave with pay is not granted where the delay in determining the employee's fitness is caused by the employee's failure to appear for the medical examination or otherwise to cooperate in its scheduling and holding.

If the physician selected by the appointing authority finds that the employee is not fit for return to duty, the employee is placed on appropriate leave charged to leave credits, sick leave at half-pay or, if necessary, on leave without pay as of the date of receipt of the physician's report. Reexaminations by the appointing authority's physician (where the employee is found unfit for duty) are not required more often than once a month and if the physician has set a date for reexamination or return to duty, not before such specified date.

This Article shall not be construed to require the extension of any employment beyond the time it would otherwise terminate or would be terminated, for example, under Section 73 of the Civil Service Law.

Employees required to submit to a medical examination conducted by a physician selected by the appointing authority are entitled to be reimbursed for actual and necessary travel, meal and lodging costs incurred as a result of travel in connection with such examination. Such reimbursement is to be made in accordance with the Comptroller's Rules and Regulations.

Subject: Leave Donation Program
Unit and Item: SSU Memorandum of Understanding
SSpU Memorandum of Understanding
Manual Reference: Appendix H, Leave Donation - Policy Bulletin 01-02

The Leave Donation Program is no longer a pilot program for employees in these units. Furthermore, employees are no longer required to have completed a year of State service in order to be eligible to receive leave donations.

Employees in these units may donate to and receive leave donations from eligible family members employed in other State agencies who are covered by leave donation agreements permitting such donations. For leave donation purposes, the definition of family is the Attendance Rules definition: any relative or relative-in-law, regardless of place of residence, or any person with whom the employee resides. The effective date for this provision is December 5, 2000 for the SSU and December 12, 2000 for the SSpU.

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