More On Leaves of Absence Without Pay

Policy Bulletin #98-02 issued December 29, 1998 in this section on the topic "Leaves of Absence Without Pay" attempted for the first time to bring together all of the rules, regulations, and contractual language that provide for mandatory leaves of absence. It also attempted to provide for the first time some basic principles governing discretionary leaves of absence.

The following examples cover some common situations and address some of the questions received since issuing Policy Bulletin #98-02. They are intended to exemplify the basic principles and the application of the criteria in the tables under "Summary of Mandatory Leaves of Absence by Type of Appointment" contained in that Bulletin.

An important point about that material: if any situation is not covered by one of the types of appointments, or if the employee being appointed does not meet all the criteria under each column, any leave provided can only be discretionary.

The final section of this bulletin contains some notes and additional information not previously published elsewhere. These are also a result of questions and comments since the publication of #98-02.

Note also that the scope of these policy bulletins is intentionally limited. Only certain kinds of appointments are addressed, and we did not address leaves under the Attendance rules, or leaves required by federal legislation (i.e., FMLA).

This bulletin does not replace Policy Bulletin #98-02, nor does it modify that information. See also Policy Bulletin #94-04, Leaves of Absence, December 7, 1994, in this section, which was the first issuance of a discussion of discretionary vs. non-discretionary leaves. Please make a note on those two bulletins to also see this one.

These are examples and cannot be all inclusive. Discuss your specific situations with your Staffing Services Representative.

Situation A -- A permanent competitive class management/confidential employee is appointed to a non-competitive class position.

1. The employee is not covered by contractual provisions, nor is there any rule or law which requires she be given a leave of absence
2. If the agency does not offer her a discretionary leave of absence and she is terminated during her probationary period, she has no right to return to her former competitive class position.

Situation B - A permanent competitive class employee in agency X has been granted a discretionary leave. During this leave the employee transfers (his competitive class hold "transfers") to a different agency, Y.

1. The original discretionary leave is canceled.
2. The employee is on mandatory leave from his position in agency X as a result of the required probation (if not waived).
3. If agency Y wishes they may grant a new discretionary leave from the position to which the employee transferred.
   

Situation C - A permanent competitive class employee is given a discretionary leave from position C. During this leave the employee is promoted or transferred from C to position D, within the agency. [Note: this would also apply if the employee received an OC list appointment.]

1. The promotion or transfer does not start a new discretionary leave.
2. The conditions of the original discretionary leave have been altered (with the consent of the employee in that she accepted the promotion or transfer) in that the employee is now on discretionary leave from position D for the time remaining in her original two years.
3. The employee is also on mandatory leave from position C for the probationary period required by the promotion or transfer.
   

SITUATION D -- A permanent non-competitive class employee is given a discretionary leave from position D. During this leave the employee is appointed to a different non-competitive class position E, within the agency.

1. The appointment does not start a new discretionary leave.

2. The conditions of the original discretionary leave have been altered (with the consent of the employee in that she accepted the appointment) in that the employee is now on discretionary leave from position E for the time remaining in her original two years.

3. Whether or not the employee is entitled to a mandatory leave from D while serving probation in E depends on whether she is a CSEA employee, on whether position E is at the same or a higher salary grade, and whether E is in the same agency. See the criteria under the table "Permanent Appointment to a Non-Competitive Class Position" in Policy Bulletin 98-02.
   

---

Situation E - A permanent competitive class employee has been granted a discretionary leave to serve in exempt class position E within his agency. During this leave he is appointed to different exempt class position, F, within the agency.

1. The appointment does not start a new discretionary leave.
2. The original conditions of the discretionary leave have not been changed.

   ---

Situation F -- A permanent competitive class employee has been granted a discretionary leave to serve in exempt class position F within her agency. During this leave she is appointed on a temporary basis (the only kind of appointment permitted) to a different position, G, which is "temp pending Commission review" for placement in the exempt class.

1. Because position G is pending Commission review it is competitive and since the employee is in the competitive class and the appointment is temporary and within her agency Rule 4.10 applies requiring a mandatory leave.
2. The mandatory leave interrupts the discretionary leave, but does not obviate it. Once the position is declared exempt the "clock re-starts" but the end date of the two years has to be altered to reflect the interruption. The employee does not get a new two years.
   

---

Situation G - A permanent competitive class employee in agency X has been granted a discretionary leave to serve in an exempt class position in agency Y. During this leave he is terminated and requests to return to his position. However, agency X says 'No' and tells the employee he may not return until the leave expires. On that date the employee returns to his competitive class position. The employee is immediately permanently appointed to non-competitive class position G.

1. The agency incorrectly told the employee he could not return. Although discretionary leaves are "contractual" in nature and their conditions may be changed only by mutual consent, since the employee was terminated he must be allowed to return before the date that was originally agreed upon.
2. In spite of the termination, the time spent out of pay status, and the appointment to G (a different position in a different jurisdictional class) this is not a new discretionary leave. If the agency wishes to continue him on leave at the end of two years they must request an extension from the Commission.
   

Situation H - A permanent competitive class employee in position H (represented by CSEA) has her position reclassified to the non-competitive class. The employee is appointed to the "pending non-competitive" (actually competitive) position temporarily (the only status permitted) until the Commission acts. There are no vacant positions in her former title.

1. Rule 4.10 requires she be given a leave for the duration of the temporary appointment.
2. Since there is no position available in her former title, the reclassified position is annotated as being her "hold item" for her former title, jurisdictional class and status. (See Notes & Additional Information below)
3. The employee has her name placed on the appropriate reemployment list(s) for her former title, but is restricted to her agency.
   

Subsequently, the position is approved as non-competitive. Since the employee was represented by CSEA in her former title she must be given a leave of absence for the duration of her probationary period that begins when she is permanently appointed. She completes this successfully and at that time is granted a discretionary leave. (Again this is an annotation made to document her former title, JC and status.) Prior to the end of her two years of discretionary leave her current position is once again reclassified, this time to the exempt class. Again the employee is appointed temporarily to the "pending" position:

1. Rule 4.10 only requires a leave of absence when a competitive employee is appointed on a temporary basis to a competitive class position. Therefore this latest appointment does not provide her with any right to a mandatory leave. However, the agency must grant her a discretionary leave to document her former title, status and jurisdictional class. (See Notes & Additional Information below)
2. Again the employee's name is placed on the appropriate reemployment list(s). Note, however, that even if the non-competitive class position was policy influencing, she would be entitled to reemployment list status because of her former competitive class status.
3. When the position is placed in the exempt class and the employee is appointed permanently she has only whatever time is left of her original two years before the agency must request an extension from the CS Commission.
   

Notes and Additional Information

• The meaning of "usually" in Policy Bulletin #98-02: In the introduction to this complex topic we made some summary statements. Given that the topic of leaves of absence is addressed several places in the civil service law and rules, as well as in other related laws and the individually negotiated contracts (which are not consistent), and further, that the current language is not always as concise as it could be, words like "usually" and "generally" are necessary when setting out the basic concepts that cover the majority of situations.
  
  
• Non-competitive positions:
  
  
  • 55 b/c positions - the contracts and rules do not distinguish among "regular" non-competitive and 55-b/c positions. Therefore, these latter are included where ever the non-competitive class is mentioned. Note however that it is the policy of the state, as enumerated in Policy Bulletin #87-01 in 1805 (B) in this manual, that where permanent 55-b/c appointees are given subsequent appointments to other 55-b/c positions, such employees must be given a leave of absence from their 55-b/c positions until they have satisfactorily completed probationary service.
• policy influencing positions - Rule 4.5 does not distinguish between "policy influencing" and "non-policy influencing" positions so its provisions must be applied to both.

 

• Appointments to positions pending Commission review: When a position is classified it is in the competitive class until the Commission and Governor act to place it in another jurisdictional class. (However, in the non-competitive and labor classes, the Commission may designate that "all" positions in a title are in the particular jurisdictional class, and, therefore when a new position is classified it is immediately in that jurisdictional class. For example, all positions of "Laborer" are in the labor class without additional action by the Commission and the Governor.) After the Commission acts the position is considered "pending non-competitive" or "pending exempt," etc. as a shorthand way of keeping track of the status. But, in fact, the jurisdictional class does not change from competitive until the entire administrative process is complete and the resolution is filed with the Department of State. Therefore, a permanent competitive class employee appointed to such a pending position, or an incumbent whose position has been reclassified, may, if the position is in the same department or agency, fall under the provisions of Rule 4.10 and be entitled to a leave of absence.
• Review of Vacant Exempt Class Positions: When an exempt class position becomes vacant it is reviewed by the Commission. A permanent competitive class or non-competitive class employee who may be appointed on a temporary basis to this position during this period is not covered by Rule 4.10 or negotiated agreements and therefore any leave granted from their position must be discretionary. When the Commission approves the continuation of the position in the exempt class, and the employee is appointed permanently and serving a probationary period, this is similarly not covered and the leave continues to be discretionary.
• Leaves for Probationers: There exists the myth that anytime a permanent employee must serve a probationary period that he must be given a leave of absence for the duration. In fact, whether the leave is mandatory or discretionary depends on the specifics of the employee's situation. Rule 4.5 (e) provides for leaves for the duration of the probationary period for employees who are promoted or transferred. This mandates leaves primarily for competitive class employees, but includes those non-competitive class employees who are defined as being promoted by section (a)(2) [Note: this should be (b)(2)] of the same rule. Other employees may or may not be covered by contractual provisions.
• Appointments vs. Reclassifications: Employees can accept or refuse appointments. One of the factors which may affect their decision is whether they are being given a leave. However, reclassifications are involuntary, and even though no rule or contract may require a leave, if the reclassification has impacted a permanent employee's tenure or promotion rights and no position is available from which to grant the employee a leave, the employee's reclassified position must be annotated to indicate former title, status and jurisdictional class for purposes identifying retention and promotion rights. In NYSTEP this requires an "E" encumbent transaction which must be entered by the Special Transactions Unit in Employment Records. Agencies must provide this information by either e-mail or FAX to Julie Dominion at Employment Records. The FAX number is 518-457-5497; e-mail is jcd@mail3.cs.state.ny.us.

Return to Top ^