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Medical Separation


Medical separation is governed by Section 71, 72, and 73 of the Civil Service Law. Medical Separation occurs when a civil service employee is injured, either on the job or off the job, which has caused them to become temporarily disabled and unable to perform the full duties of their position for a period of time. If the temporary disability continues for a year or more, the agency employer can terminate the employee which is known as medical separation.

If you receive notice that your employer is seeking to medically separate you, first call your union, then call the Watford Jackson, PLLC. The Partners at Watford Jackson have a combined 40+ years representing civil servants in medical separation proceedings.

Is Being Medically Separated The Same As Being Fired For Misconduct?

A termination for medical separation is different than a termination for misconduct or incompetence. Section 75 of the Civil Service Law allows an agency employer to discipline and/or terminate an employee for misconduct or incompetency after a due process hearing on the stated charges. When a civil servant employee uses too much sick time, it can be deemed misconduct which can get them fired. When a civil servant employee has been out sick and unable to perform the full duties of their position for more than 50% of the work year, that employee can also be deemed medically incompetent. To establish incompetence, petitioner must provide “evidence of some dereliction or neglect of duty.” Simply stated, being unable to perform the duties of the job that you were hired to do, can be viewed by your employer as misconduct or incompetency which can get you fired.

Generally, when an employee is terminated for misconduct or incompetence, they cannot return to work for that employer again. By contrast, medical separation under the Civil Service Law (Sections 71, 72 & 73), provides a more humane alternative to disciplinary action when an employee’s absence is due to a temporary disability. Under certain circumstances, when a person is medically separated due to a temporary disability and that temporary disability has been removed (the person has healed or recuperated) and has been cleared to return to work by their private doctor(s), the medical separation laws permit that employee to apply to be reinstated to their former position. The employee seeking reinstatement must have an independent medical examination conducted by doctors hired by the governmental agency. If the independent medical doctor determines that the employee is fit to perform the full duties of their prior position, the employee can be reinstated to their former position.

I Got Injured On The Job, Can I Be Medically Separated?

Yes. Section 71 of the Civil Service Law governs temporary disability caused by a work related injury. If the employee was injured on the job and temporarily unable to perform the full duties of their position for a year or more, that employee can be medically separated. When an employee is injured as a result of an assault that occurred on the job, that employee can be medically separated after two years of being unable to perform the full duties of their position. Being unable to perform the full duties of your position applies to being out sick as well as being assigned light or limited duty.

My Injury Occurred Off The Job And Is Not Work Related, Can I Be Medically Separated?

Yes. Section 73 of the Civil Service Law governs non-work-related injuries that cause the temporary disability. When an employee is continuously absent for 365 days a more and unable to perform the full duties of their position, they can be medically separated under Section 73. The key component under a Section 73 medical separation is that the employee must be continuously absent or on sick leave for 365 consecutive days and unable to perform the full duties of their position at the time of the medical separation hearing.

What Is The Procedure For Medical Separation?

An agency employer must give the employee written notice of the proposed medical separation and inform the employee of their right to a request a due process hearing. After the employee has been served with the formal written notice, usually 60 days prior to the proposed medical separation, the employee has the right to object to the proposed medical separation and request a due process hearing.

At the due process hearing, the employee will be able to challenge their employer’s evidence, present witnesses on their own behalf, and present evidence that proves that he/she is no longer temporarily disabled and is currently able to perform the full duties of their position. An administrative law judge or hearing officer will preside over the medical separation due process hearing. After hearing all of the evidence presented at the hearing, the judge or hearing officer will make a decision regarding the employee’s fitness for duty. If the judge or hearing officer finds that the employee is in fact fit to perform the full duties of their position, then the medical separation proceeding will be dismissed. On the other hand, if the judge or hearing officer decides that the employee is unfit to perform the full duties of their position, they will be medically separated.

Can I Fight Being Medically Separated?

Generally, an employee can fight being medically separated if their doctor clears them to return to work. As previously stated, an employer usually provides notice of the proposed medical separation 60 days prior to the actual date of medical separation. The employee must timely file an objection to the proposed medical separation before the scheduled date of medical separation. The employee can only file an objection and request a due process hearing after the employee obtains written proof from their private doctor that he/she has been medically cleared to return to work. If the employee’s doctor(s) will not clear them to return to work, then as stated above, there is no legal objection that can be filed to stop the proposed medical separation proceeding.

It should be noted, that for a work related injury under Section 71, an employee must be cleared to return to work in a full duty capacity. The reason for this is that Section 71 applies to work-related injuries and therefore in order to stop the proposed medical separation the employee must be able to return to work without restrictions. Additionally, under Section 71 the calculation of the time to be used against the employee includes being out sick as well as being on limited or light duty. The medical separation law allows an employer to cumulatively consider days the employee was assigned to work light duty and/or limited duty in addition to sick leave usage when making the calculations whether an employee will be medically separated.

Under Section 73 of the Civil Service Law, once the employee returns to work in any capacity before accumulating 365 consecutive days, he/she is no longer continuously absent. Consequently, the 365 day clock stops ticking, even if it is for one day, and any subsequent usage if sick leave restarts the clock from zero (0). Under these circumstances, an employer will not prevail at the proposed Section 73 medical separation due process hearing.

Am I Automatically Entitled To A Due Process Hearing?

Under certain circumstances, a due process hearing is not guaranteed. An employee is only entitled to a due process hearing for the proposed medical separation when there is a genuine issue of fact regarding their fitness for duty. If there is no genuine issue of fact regarding the employee’s fitness for duty, the employee is not entitled to a due process hearing prior to being medically separated.

For example, if the employer’s doctor determines that the employee is not fit to perform the full duties of their position and the employee’s private doctor says that the employee is fit to perform the full duties of their position, that disagreement creates an issue of fact regarding the employee’s fitness that must be decided by a judge or a hearing officer. Under these circumstances, the employee is entitled to a due process hearing.

On the other hand, when the employer’s doctor states that the employee is not fit to perform the full duties of their position, and the employee’s doctor(s) also says that the employee is not fit to perform the full duties of their position, there is no issue of fact that must be determined by a judge or hearing officer. In other words, both doctors (employer and employee) agree that the employee is not fit to perform the full duties of their position and therefore a hearing is not necessary to determine fitness for duty. Under these circumstances, the employee will be medically separated without a hearing. This is the reason why medical separation due process hearing is not always guaranteed before the employee is medically separated.

My Doctor Has Cleared Me To Return To Work Full Duty But My Employer Will Not Return Me To Work? Under These Circumstances, Can I Be Medically Separated?

Not without a due process hearing. Once the employee has submitted proof to its employer that it’s treating physician has cleared the employee to return to work in a full duty capacity, the employee can file a formal objection to any proposed medical separation and request a due process hearing. One of the reasons that an employer may not return the employee to work is because the employer does not trust the employee’s doctor’s opinion that the employee can return to work in a full capacity. Put another way, since the employer’s doctors evaluate employee’s fitness for duty for a specific job title on a daily basis, sometimes they question the reliability of the employee’s doctor’s opinion on fitness and will not clear the employee to return to work full duty. If this happens to you, it is important that you continue to follow up with your private doctor and that your doctor continue to document his/her opinion, after each visit, that you can return to work in a full duty capacity. You must continue to do this while awaiting the due process hearing. If at any time between the filing of the objection and the due process hearing, your doctors change their opinion regarding your fitness to return to work full duty your employer will use this information against you at the hearing in an attempt to prove you are not fit to return to work.

What Is Section 72 Of The Civil Service Law?

An employee who, due to a non-work-related injury, has remained in a limited or light duty capacity for an extended period of time may be subjected to involuntary leave of absence under Section 72 of the Civil Service Law. Section 72 governs the procedure that allows an employer to place employees with disabilities on an involuntary unpaid leave when they have proven to be unfit to perform their duties. The disability may be physical or mental. If the employee remains on this unpaid leave for 365 consecutive days, they subsequently will be medically separated under Section 73 of the Civil Service law.

Procedure For Involuntary Medical Leave Of Absence

An employer seeking to place an employee on a medical involuntary unpaid leave of absence under Section 72 must give the employee written notice of the proposed leave of absence and the employee will have ten (10) days file an objection to the proposed involuntary leave of absence. Additionally, an employer seeking to place an employee on the involuntary leave of absence may require the employee to undergo an independent medical examination. If the employee is found unfit after the independent medical examination, the employer may use this as evidence at the due process hearing.

Unlike Section 71 and Section 73, if an employee requests a due process hearing under Section 72 of the Civil Service Law, by law, the employer must provide the hearing before placing the employee on the medical involuntary leave of absence. At the due process hearing, the employee can challenge the employer’s evidence and present medical evidence on its behalf proving his/her fitness for duty. If the judge or hearing officer determines that the employee is unfit for duty, the employee will immediately be placed on the involuntary leave of absence. If the employee is found to be fit for duty, the section 72 proceeding will be dismissed, the employee will be returned to work and the employee is entitled to be reimbursed for any leave balances that were used during the involuntary leave of absence.

Involuntary Leave Of Absence Due To Mental Disability

Under certain circumstances, an employer that believes an employee is suffering from a mental disability can immediately place that employee on a pre-hearing involuntary leave of absence when the employer determines that the employee poses a safety risk to himself to other coworkers. Under Section 72, the employee is guaranteed a post involuntary leave due process hearing in order to dispute the allegation of mental unfitness. If the judge or hearing officer determines that the employee is fit for duty, the employee will immediately be reinstated and credited for any leave balances that were utilized during the involuntary leave. If the hearing officer determines that the employee is mentally unfit for duty, the employee will remain on the involuntary unpaid leave of absence.

Similar to the medical involuntary leave of absence, if the employee remains the unpaid leave of absence for 365 consecutive days, the employee will be medically separated under Section 73 of the Civil Service Law. Under Section 73, prior to the end of the 365 days period, the employee can seek to be reinstated only if the employee’s private doctor clears him/her for return to work in a full duty capacity.

If you receive notice that your employer is seeking to medically separate you, first call your union, then call the Watford Jackson, PLLC. The Partners at Watford Jackson have a combined 40+ years representing civil servants in medical separation proceedings.

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