New York Civil Service Medical Separation Defense Lawyer
It is unfortunate when any person loses the benefits of a tenured civil service position, but especially so when the loss is due to physical or mental disability.
If you are unable to perform the full duties of your civil service position for a year or more, your employer can terminate you through a process known as medical separation. This is better than the alternative of disciplinary termination because medical separation leaves open the possibility of returning to your position if you recover. Even so, you may not want to lose your job at this time.
If your civil service employer serves you with notice of medical separation, you have the right to protest the separation. Speak to your union and also to an attorney about your options. If you can make a strong case, you may be able to stop the separation and win reinstatement to your position.
Joey Jackson Law, PLLC., is ideally suited to represent and defend you in medical separation proceedings. Attorney Joey Jackson has over 25 years of experience in criminal and civil service employment defense law in New York City. Our civil service job defense team will evaluate the details of your situation and advise you on the best course of action. When you choose Joey Jackson Law, PLLC., you can count on savvy legal counsel, tenacious protection of your legal rights, and a passionate team dedicated to winning for you.
Medical Separation From The New York Civil Service Requires Due Process
The medical separation process is governed by Sections 71–73 of New York Civil Service Law. Medical separation requires that the employee have a disability, i.e., a mental or physical injury or disease that renders the employee unable to perform the full duties of their position.
Section 71 covers employees with an occupational disability, meaning a disability incurred on the job that qualifies for workers’ compensation leave. Employees with a nonjob-related ordinary disability may be placed on involuntary, unpaid disability leave under Section 72 and terminated under Section 73.
Whether their disability is occupational or ordinary, a tenured civil service employee cannot be terminated without due process. The employer must first give the employee formal written notice of the proposed medical separation, usually 60 days prior to the proposed separation date. The employee then has the right to object and request a hearing. The rules for disability hearings are essentially the same as for civil service disciplinary hearings.
Ways To Challenge Medical Separation From The New York Civil Service
You may be able to protest or appeal a medical separation on the following grounds:
The extent of your disability was misinterpreted. Your employer will require you to be examined by their designated medical officer to determine if you are physically and mentally fit to perform all duties of your position. If you are deemed unfit, you will only be entitled to a hearing if your personal doctor provides a written statement that you are fit to perform the full duties of your position. At the hearing, you can argue that the medical officer failed to conduct a proper examination or failed to correctly understand the duties of your position. Also, remember that a person’s level of disability often varies from day to day. While awaiting your hearing, it will be helpful if you visit your personal doctor more than once, so that your doctor can document that you were fully fit on multiple visits. This will strengthen your case at the hearing.
Your employer miscalculated the duration of your disability. Under Section 73, an employee with an ordinary disability cannot be terminated until they have been continuously absent from and unable to perform the full duties of their position for at least 365 days. The employee may be on a voluntary or involuntary leave of absence during that time. If the employee is able to work full-duty for just one day before 365 consecutive days have accrued, the 365-day clock is reset to zero.
Under Section 71 and New York State Department of Civil Service regulations, an employee with an occupational disability cannot be terminated until they have been unable to perform their full duties for at least 365 calendar days in total (not continuous), counting sick days and days on limited or light duty. There are two exceptions: An employee disabled by an on-the-job assault is entitled to two years’ leave, and leave can be ended on 30–60 days’ notice after an employee is deemed permanently incapacitated.
You were not given due process as required by law. You may have grounds to appeal a disability-related decision if your due-process rights were violated.
If you have had to take leave for either an occupational or ordinary disability, you can request an official medical exam at any point before your allowed disability time expires. If you are certified as physically and mentally fit for duty, your employer must let you return to work. If you are denied, you have the right to protest either in writing or in a hearing, depending on the circumstances.
Due process is also required prior to placing an employee on Section 72 involuntary, unpaid leave for ordinary disability. If an employer believes that an employee poses a safety risk due to a mental disability, the employee may be placed immediately on involuntary leave of absence. Otherwise, the employee must first be found unfit for duty by a civil service medical officer. If your employer decides to proceed with a Section 72 action, they must serve you with a written notice. You must be given 10 working days from the date of notice to object and request a due process hearing.
By law, you must be given a hearing, even if you do not have a statement of fitness from your personal doctor. At this hearing, you and your attorney can challenge your employer’s evidence and present your own evidence regarding your fitness for duty. If the hearing officer determines that you are not fit for duty, you will immediately be placed on involuntary leave. If you are deemed fit for duty, you must be allowed to return work and you must be reimbursed for any leave you had to use during the process.
How Is Medical Separation Different From Disciplinary Termination In New York?
Section 75 of the New York Civil Service Law defines the disciplinary process that must be followed in order to terminate a tenured civil service employee for misconduct or incompetence. When a civil servant employee takes too much time off, that can be viewed as misconduct. When a civil servant employee fails to perform the full duties of their position, that can be viewed as incompetence if the employer can show evidence of dereliction or neglect of duty. Generally, when an employee is terminated for misconduct or incompetence, they cannot return to work for that employer again.
In contrast, medical separation provides a more humane alternative to disciplinary action when an employee’s absence is due to a temporary disability. If a person is medically separated, the employee can be reinstated to their old position if they are able to fully recover within the timeframe allowed under Sections 71–73, which is one year in most cases but two years if the disability resulted from an on-the-job assault.
New York City Lawyer For Civil Service Disability Hearings
If you are a tenured New York civil service employee who wants to fight a medical separation, contact Joey Jackson Law, PLLC., at 833-563-9522. We have helped many civil service employees by protecting their legal rights and their civil service employment. Read more about medical separation on our frequently asked questions page.