Labor & Employment Law

Dismissal and workers' compensation leave

Dismissal and workers' compensation leave
Lynn v Clarkstown, App. Div., 2nd Dept., 296 A.D.2d 411

Town of Clarkstown police officer John Lynn challenged his termination from employ­ment while on workers' compensation leave pursuant to Section 71 of the Civil Service Law.

Section 71 provides that "[w]here an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen's [sic] compensation law, he [or she] shall be entitled to a leave of absence for [a cumulative period of] at least one year, unless his [or her] disability is of such a nature as to permanently incapacitate him [or her] for the performance of the duties of his positions" [emphasis supplied].

Section 72 of the Civil Service Law applies in cases where the employee is unable to perform the duties of his or her position as a result of an injury or disease that is not work-related. However, the one-year leave of absence mandated by Section 72 is for a consecutive period of one year in contrast to the "cumulative" period of one year applica­ble in Section 71 situations. Further, Section 73 of the Civil Service Law controls with respect to "terminations" from Section 72 leaves of absences.

Lynn sued in an effort to compel the Town to place him on leave pursuant to General Municipal Law [GML] Section 207-c retroactive to April 17, 1998.

After finding that Lynn was "lawfully terminated" from his employment pursuant to Civil Service Law Section 71 and was accorded all of the regulatory and due process rights to which he was entitled, the Appellate Division considered Lynn's claim of entitlement to Section 207-c benefits.

According to the ruling, on March 17, 2000 the Chief of Police rejected Lynn's applica­tion for Section 207-c benefits. The Appellate Division found that Lynn's letter dated January 29, 2001, seeking Section 207-c benefits was, at most, "an application for recon­sideration of an administrative determination which served neither to extend nor to toll the statute of limitations."

Thus, said the court, Lynn's challenge to the Chief's March 17, 2000, denial of his re­quest Section 207-c benefits was untimely.

It should be remembered that terminations pursuant to Sections 71 and 73 of the Civil Service Law are not terminations in the nature of a dismissal from employment. It would be better to characterize the "personnel action" resulting from a Section 71 or 73 termina­tion as a separation from the individual's payroll/leave status.

Why make such a distinction with respect to the individual's "personnel status?" Because employees "terminated" from Section 71 or 72 leaves have certain statutory rights, in­cluding the right to reinstatement to their former position, or a similar vacancy, if they apply for such reemployment within one year of the termination of the disability that led to their placement on Section 71 or Section 72 leave in the first instance.

An individual who is "dismissed" or who resigns from his or her employment does not enjoy any statutory right to reinstatement. Such an individual may be reinstated to his or her former position if the appointing authority elects to exercise its discretionary authori­ty to reinstate the individual.

Full post as published by New York Public Personnel Law on June 11, 2008 (boomark / email).