In addition to leaves and benefit time provided by the employer, there are several other leaves related specifically to medical conditions.
Leave for Disability
Sections 71, 72 and 73 of Civil Service Law deal with employees who are unable to perform their work because of physical or mental injury or disease. Section 71 applies to occupational related problems as defined by Worker’s Compensation Law. Sections 72 and 73 are concerned with regular injury or disease. They all offer similar rights to the employer and employee.
- Evaluation. An employer has the right to send an employee for medical evaluation if he has reasonable grounds to believe the employee is unable to perform the duties of the position. The health care professional is selected and paid for by the employer. If the employee provides medical documentation that they are unable to perform their job, the employer may accept the documentation or arrange an evaluation for confirmation.
- Leave. If a permanent employee is found to be unable to perform the duties of the position, they are entitled to be placed on a leave of absence. If they have appropriate benefit time, they are allowed to use it. The employee’s position can only be filled on a temporary basis while they are on leave.
- Termination. The employee is entitled to at least 1 year of leave. The courts have held that this can be cumulative if it can be proved the time is related to one specific injury or disease. At any time after 1 year, the employee can be terminated.
- Reinstatement. The terminated employee may apply for reinstatement should the injury or disease end or be mitigated to the point they can do their job. The employer can send the employee for medical evaluation before reinstatement. If found to be able to perform the job, the employee is reinstated to a vacant position in their former title if available, or is placed on a preferred list.
- Procedures. The law specifies certain procedures, time frames and notifications to be followed. Be sure to discuss these situations with your Personnel Department representative and your legal counsel.
Family Medical Leave Act
The Family and Medical Leave Act (FMLA) is a federal law intended to balance the demands of the workplace with the needs of families. It provides workers faced with family obligations or personal illness with reasonable amounts of leave time. FMLA has to be tracked by the employer and is intended to be a guaranteed minimum leave for an employee. It may run concurrent with other types of leave or benefit time usage. The provisions and requirements of FMLA can be confusing, difficult to administer, and can be complicated by an agency’s own policies on leaves. Agencies are advised to review all situations with their own legal counsel to ascertain the applicability and impact of this law.
Generally, the following applies:
Who is eligible
- employee must be employed by an agency that has at least 50 employees;
- employee must have worked for the employer for at least 12 months (do not have to be consecutive);
- employee must have worked at least 1,250 hours for the employer over the previous 12 months (benefit time usage and holidays do not count).
Reasons for leave
- birth and/or care of the employee’s newborn child; adoption of a child; receiving a child placed in foster care;
- care for an immediate family member who has a serious health condition;
- care of an employee’s own serious health condition;
- for “any qualifying exigency” arising out of a covered family member’s active military duty or pending call to active duty (exigencies to be determined by the Secretary of Labor).
- employee is entitled to up to 12 weeks of unpaid leave per year and may take time on an intermittent basis if medically necessary;
- employee is entitled to up to 26 weeks of unpaid leave per year to care for a family member who, as an active military service member, became seriously ill or injured in the line of duty;
- when the need is foreseeable, the employee should give at least 30 days notice;
- an employer may require medical certification for serious health conditions, may require periodic reports during the leave, and may require a “fitness-for-duty” report before returning to work;
- an employee may opt to use (or the employer may require) the use of any accrued benefit time while on FMLA leave;
- any group health benefit must be maintained at the same level during the FMLA leave;
- the employee is not entitled to accrue benefit time during unpaid FMLA leave.