Bill Text: NY A09932 | 2023-2024 | General Assembly | Introduced

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Bill Title: Expands the authority of hearing officers regarding judgments about an employee's inability to perform their duties due to a disability to be provided to the employee and the authorized representative of such employee.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed) 2024-06-04 - RETURNED TO ASSEMBLY [A09932 Detail]

Download: New_York-2023-A09932-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          9932

                   IN ASSEMBLY

                                     April 26, 2024
                                       ___________

        Introduced  by  M.  of A. PHEFFER AMATO -- read once and referred to the
          Committee on Governmental Employees

        AN ACT to amend the civil service law, in relation to hearing officers

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Subdivision  1 of section 72 of the civil service law, as
     2  amended by chapter 547 of the laws  of  1984,  is  amended  to  read  as
     3  follows:
     4    1.  When  in  the  judgment  of an appointing authority an employee is
     5  unable to perform the duties of [his or her] such employee's position by
     6  reason of a disability, other than a disability resulting  from  occupa-
     7  tional  injury  or  disease as defined in the workers' compensation law,
     8  the appointing authority may require such employee to undergo a  medical
     9  examination  to  be conducted by a medical officer selected by the civil
    10  service department or municipal commission having jurisdiction.  Written
    11  notice of the facts providing the basis for the judgment of the appoint-
    12  ing authority that the employee is not fit to perform the duties of [his
    13  or  her]  such employee's position shall be provided to the employee and
    14  the civil service department or commission having jurisdiction prior  to
    15  the  conduct  of the medical examination. If, upon such medical examina-
    16  tion, such medical officer shall certify that such employee is not phys-
    17  ically or mentally fit to perform  the  duties  of  [his  or  her]  such
    18  employee's position, the appointing authority shall notify such employee
    19  that  [he  or  she]  they may be placed on leave of absence. An employee
    20  placed on leave of absence pursuant to this section  shall  be  given  a
    21  written statement of the reasons therefor. Such notice shall contain the
    22  reason  for the proposed leave and the proposed date on which such leave
    23  is to commence, shall be made in writing and  served  in  person  or  by
    24  first  class,  registered  or  certified mail, return receipt requested,
    25  upon the employee. Such notice shall also inform the employee of [his or
    26  her] their rights under this procedure. An employee shall be allowed ten
    27  working days from service of the notice to object to the  imposition  of
    28  the  proposed leave of absence and to request a hearing. The request for
    29  such hearing shall be filed by  the  employee  personally  or  by  first

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15040-01-4
        A. 9932                             2

     1  class,  certified  or  registered  mail,  return receipt requested. Upon
     2  receipt of such request, the appointing authority shall  supply  to  the
     3  employee,  [his or her] such employee's personal physician or authorized
     4  representative,  copies of all diagnoses, test results, observations and
     5  other data supporting the certification, and imposition of the  proposed
     6  leave  of  absence shall be held in abeyance until a final determination
     7  is made by the appointing authority as provided  in  this  section.  The
     8  appointing  authority  will  afford the employee a hearing within thirty
     9  days of the date of a request by the employee to be held by an independ-
    10  ent hearing officer agreed  to  by  the  appointing  authority  and  the
    11  employee except that where the employer is a city of over one million in
    12  population such hearing may be held by a hearing officer employed by the
    13  office  of administrative trials and hearings. If the parties are unable
    14  to agree upon a hearing officer, [he or she] such hearing officer  shall
    15  be  selected  by  lot  from  a  list  of persons maintained by the state
    16  department of civil service. The hearing officer shall not be an employ-
    17  ee of the same appointing authority as the employee alleged to be  disa-
    18  bled.    [He or she] The hearing officer shall be vested with all of the
    19  powers of the appointing authority, and shall make a record of the hear-
    20  ing which shall, with [his or her recommendation,  be  referred  to  the
    21  appointing  authority  for  review  and] such hearing officer's decision
    22  [and which shall] be provided to the affected employee free of charge. A
    23  copy of the transcript of the hearing shall, upon request of the employ-
    24  ee affected, be transmitted to [him] such employee without  charge.  The
    25  employee  may  be  represented  at any hearing by counsel or a represen-
    26  tative of a certified or recognized employee organization and may  pres-
    27  ent  medical experts and other witnesses or evidence. The employee shall
    28  be entitled to a reasonable period of  time  to  obtain  such  represen-
    29  tation. The burden of proving mental or physical unfitness shall be upon
    30  the  person  alleging  it.  Compliance  with technical rules of evidence
    31  shall not be required. [The appointing authority  will  render  a  final
    32  determination  within  ten  working  days  of the date of receipt of the
    33  hearing officer's report and recommendation.  The  appointing  authority
    34  may  either  uphold  the  original  proposed notice of leave of absence,
    35  withdraw such notice or modify the notice as appropriate.] In any event,
    36  a final determination of an employee's contest  of  a  notice  of  leave
    37  shall be rendered within seventy-five days of the receipt of the request
    38  for  review.  An  employee on such leave of absence shall be entitled to
    39  draw all accumulated, unused sick leave, vacation,  overtime  and  other
    40  time  allowances  standing  to  [his or her] such employee's credit. The
    41  [appointing authority] hearing officer in the final determination  shall
    42  notify  the  appointing  authority  or the employee of [his or her] such
    43  employee's right to appeal from such determination to the civil  service
    44  commission  having  jurisdiction in accordance with subdivision three of
    45  this section.
    46    § 2. This act shall take effect immediately.