N.Y. Civ. Serv. Law § 72

§ 72. Leave for ordinary disability. 1. When in the judgment of an\nappointing authority an employee is unable to perform the duties of his\nor her position by reason of a disability, other than a disability\nresulting from occupational injury or disease as defined in the workers'\ncompensation law, the appointing authority may require such employee to\nundergo a medical examination to be conducted by a medical officer\nselected by the civil service department or municipal commission having\njurisdiction. Written notice of the facts providing the basis for the\njudgment of the appointing authority that the employee is not fit to\nperform the duties of his or her position shall be provided to the\nemployee and the civil service department or commission having\njurisdiction prior to the conduct of the medical examination. If, upon\nsuch medical examination, such medical officer shall certify that such\nemployee is not physically or mentally fit to perform the duties of his\nor her position, the appointing authority shall notify such employee\nthat he or she may be placed on leave of absence. An employee placed on\nleave of absence pursuant to this section shall be given a written\nstatement of the reasons therefor. Such notice shall contain the reason\nfor the proposed leave and the proposed date on which such leave is to\ncommence, shall be made in writing and served in person or by first\nclass, registered or certified mail, return receipt requested, upon the\nemployee. Such notice shall also inform the employee of his or her\nrights under this procedure. An employee shall be allowed ten working\ndays from service of the notice to object to the imposition of the\nproposed leave of absence and to request a hearing. The request for such\nhearing shall be filed by the employee personally or by first class,\ncertified or registered mail, return receipt requested. Upon receipt of\nsuch request, the appointing authority shall supply to the employee, his\nor her personal physician or authorized representative, copies of all\ndiagnoses, test results, observations and other data supporting the\ncertification, and imposition of the proposed leave of absence shall be\nheld in abeyance until a final determination is made by the appointing\nauthority as provided in this section. The appointing authority will\nafford the employee a hearing within thirty days of the date of a\nrequest by the employee to be held by an independent hearing officer\nagreed to by the appointing authority and the employee except that where\nthe employer is a city of over one million in population such hearing\nmay be held by a hearing officer employed by the office of\nadministrative trials and hearings. If the parties are unable to agree\nupon a hearing officer, he or she shall be selected by lot from a list\nof persons maintained by the state department of civil service. The\nhearing officer shall not be an employee of the same appointing\nauthority as the employee alleged to be disabled. He or she shall be\nvested with all of the powers of the appointing authority, and shall\nmake a record of the hearing which shall, with his or her\nrecommendation, be referred to the appointing authority for review and\ndecision and which shall be provided to the affected employee free of\ncharge. A copy of the transcript of the hearing shall, upon request of\nthe employee affected, be transmitted to him without charge. The\nemployee may be represented at any hearing by counsel or a\nrepresentative of a certified or recognized employee organization and\nmay present medical experts and other witnesses or evidence. The\nemployee shall be entitled to a reasonable period of time to obtain such\nrepresentation. The burden of proving mental or physical unfitness shall\nbe upon the person alleging it. Compliance with technical rules of\nevidence shall not be required. The appointing authority will render a\nfinal determination within ten working days of the date of receipt of\nthe hearing officer's report and recommendation. The appointing\nauthority may either uphold the original proposed notice of leave of\nabsence, withdraw such notice or modify the notice as appropriate. In\nany event, a final determination of an employee's contest of a notice of\nleave shall be rendered within seventy-five days of the receipt of the\nrequest for review. An employee on such leave of absence shall be\nentitled to draw all accumulated, unused sick leave, vacation, overtime\nand other time allowances standing to his or her credit. The appointing\nauthority in the final determination shall notify the employee of his or\nher right to appeal from such determination to the civil service\ncommission having jurisdiction in accordance with subdivision three of\nthis section.\n 2. An employee placed on leave pursuant to subdivision one of this\nsection may, within one year after the date of commencement of such\nleave of absence, or thereafter at any time until his or her employment\nstatus is terminated, make application to the civil service department\nor municipal commission having jurisdiction over the position from which\nsuch employee is on leave, for a medical examination by a medical\nofficer selected for that purpose by such department or commission. If,\nupon such medical examination, such medical officer shall certify that\nsuch employee is physically and mentally fit to perform the duties of\nhis or her position, he or she shall be reinstated to his or her\nposition.\n 3. An employee who is certified as not physically or mentally fit to\nperform the duties of his or her position and who is placed on leave of\nabsence pursuant to subdivision one of this section, or who is denied\nreinstatement after examination pursuant to subdivision two of this\nsection, may appeal from such determination to the state or municipal\ncivil service commission having jurisdiction over his or her position.\nSuch employee and appointing officer or their representatives shall be\nafforded an opportunity to present facts and arguments in support of\ntheir positions including medical evidence at a time and place and in\nsuch manner as may be prescribed by the commission. Provided however,\nthat in considering appeals pursuant to subdivision two of this section\nwhere a hearing has not been held within nine months from the date of\nnotification pursuant to subdivision one of this section, the commission\nshall designate an independent hearing officer who shall hold a hearing\nand report thereon. The commission shall make its determination on the\nbasis of the medical records and such facts and arguments as are\npresented to it. The final determination of the commission shall be\nbinding on both the employee and the appointing authority; provided,\nhowever, that an employee or appointing authority may seek review of a\nfinal determination of a commission in accordance with the provisions of\narticle seventy-eight of the civil practice law and rules.\n 4. If an employee placed on leave pursuant to this section is not\nreinstated within one year after the date of commencement of such leave,\nhis or her employment status may be terminated in accordance with the\nprovisions of section seventy-three of this article.\n 5. Notwithstanding any other provisions of this section, if the\nappointing authority determines that there is probable cause to believe\nthat the continued presence of the employee on the job represents a\npotential danger to persons or property or would severely interfere with\noperations, it may place such employee on involuntary leave of absence\nimmediately; provided, however, that the employee shall be entitled to\ndraw all accumulated unused sick leave, vacation, overtime and other\ntime allowances standing to his or her credit. If such an employee is\nfinally determined not to be physically or mentally unfit to perform the\nduties of his or her position, he or she shall be restored to his or her\nposition and shall have any leave credits or salary that he or she may\nhave lost because of such involuntary leave of absence restored to him\nor her less any compensation he or she may have earned in other\nemployment or occupation and any unemployment benefits he or she may\nhave received during such period.\n