To: Department and Agency Personnel Directors, Human Resources and Affirmative Action Officers

From: Eugene Sarfoh, Counsel

Subject: Chapter 306 of the Laws of 2024 – Revisions to Civil Service Law section 72

Chapter 306 of the Laws of 2024 has made substantive changes to Civil Service Law (CSL) Section 72, which governs appointing authorities' determinations to place employees on involuntary leaves of absence for a disability other than a disability resulting from an occupational injury or disease as defined in the Workers' Compensation Law, or when an employee who has been voluntarily on leave due to a personal illness is prevented from returning to work by the appointing authority. (See SPMM Advisory Memorandum #14-01.)

Starting January 1, 2025, an appointing authority that refers an employee for a fitness for duty examination pursuant to CSL section 72 must provide the employee with a copy of any written, electronic or other communications provided by the appointing authority to a medical officer or other entity regarding the claim that such employee is unable to perform the duties of their position. This information must be provided to the employee prior to the conduct of any medical fitness for duty examination. This means that the employee must be provided with the documentation directing the referral to the Department of Civil Service Employee (DCS) Health Service (EHS) or its designees, including the completed EHS medical referral forms and all of the supporting documentation.

For immediate removals from the workplace, when the employee is considered to present a potential danger to persons or property or would severely interfere with operations per CSL section 72(5), the employee must be provided with all documentation prior to any EHS examination or lab testing. Where practicable, the employee can be provided such documentation contemporaneous with removal from the workplace. Where this is not possible, in all cases the appointing authority must provide all documents prior to the EHS examination or lab testing.

Chapter 306 also provides that this information must be transmitted to the DCS and the "authorized representative" of such employee. As before, receipt of the fitness for duty referral forms and supporting records by EHS constitutes notice to DCS. However, this confidential medical information should not be given to the employee's union, a union representative (such as an agency or facility union representative), the Organization of Management Confidential Employees (OMCE), a co-worker, an attorney, family member or any other purported "authorized representative" without a newly signed authorization from the employee. Appointing authorities should have employees use the attached Authorization Form for this purpose.

If an employee is placed on leave pursuant to CSL section 72, the employee must be provided with a written statement of the reasons therefor and complete copies of all of the documentation, reports and records relied upon by EHS during the fitness for duty examination[s], including any documents, reports and correspondence sent to the appointing authority at the conclusion of the medical examination. Since EHS may not be aware that an employee has been placed on CSL section 72 medical leave following an examination, the appointing authority must advise EHS that the employee has been placed on leave so that the medical records can be forwarded to the employee by regular, registered or certified mail. Employers must provide a current and correct mailing address for the employee along with the notification of imposed leave sent to EHS. EHS must provide this medical information to the employee even if the employee does not appeal the decision to be placed on CSL section 72 leave.

Any questions regarding these requirements should be directed to Counsel's Office at the Department of Civil Service.

Attachment: Authorization Form

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