Title 4 Part 28

An employee shall receive additional vacation credit on the day on which such employee would normally be credited with such additional vacation in accordance with the above schedule, and shall thereafter be eligible for additional vacation credit upon the completion of each additional 12 months of continuous State service.

This section governs leave for employees necessarily absent from duty because of an injury or disease arising out of and in the course of State employment. Subdivisions (a) through (o) inclusive, govern leave for those whose injury or disease occurred before September 2, 1986, subdivisions (p) through (y) inclusive, govern leaves for those whose injury or disease occurred on or after September 1, 1986 and before September 1, 1994 and subdivisions (z) through (gg) inclusive, govern leaves for those whose injury or disease occurred on or after September 1, 1994.

If the employee's claim for benefits under the Workers' Compensation Law is controverted by the State Insurance Fund at the request of the appointing authority or on its own initiative, the employee shall not be allowed workers' compensation leave. If final determination of the controverted claim is in favor of the employee, eligibility for leave shall be determined as provided in subdivisions (a) and (c) of this section for all absences necessitated by the occupational injury or disease.

Leave under subdivision (a) of this section may be withheld or terminated if:

An employee allowed leave from his/her position pursuant to subdivision (a) of this section shall receive pay during such leave for each separate injury or disease and regardless of the date of occurrence of such injury or disease, subject to the following provisos:

Notwithstanding the provisos set forth in subdivision (d) of this section, the following conditions will also apply:

An employee allowed leave with pay under subdivisions (a) through (o) of this section may elect to draw accrued leave credits for part or all of such employee's absences from duty before being granted leave with pay under subdivision (d) of this section.

An employee who is necessarily absent from duty as described hereinabove may be granted compensation leave with pay, without charge against leave credits, for absences of less than a full day.

An employee who is allowed leave with full pay as provided in subdivision (d) of this section shall be allowed such leave with pay when absent from duty for the purpose of attending a hearing scheduled by the Workers' Compensation Board or a board-ordered medical examination, or visiting a doctor for examination or treatment, subject to the proviso set forth in subdivision (d).

An employee who receives full pay for any period of leave under this section shall earn leave credits during such period.

An employee on leave with pay without charge to leave credits under paragraph (d)(3) of this section, on days observed as holidays by the State as an employer, shall not be eligible to observe such days as paid holidays nor eligible for compensatory time off in lieu thereof.

If it is subsequently determined that an employee was not entitled to compensation leave with pay, without charge to leave credits, for any period for which such employee was granted such leave as provided hereinabove, the employee shall be required to make reimbursement for such paid leave from current or subsequent accumulations of leave credits at a rate and in a manner determined by the appointing authority.

An employee who draws leave credits or is allowed sick leave at half pay, as provided in subdivision (d) of this section, shall be entitled to restoration of such credits and such sick leave at half-pay eligibility, excluding leave credits charged pursuant to paragraph (d)(1) of this section or advanced pursuant to paragraph (d)(2), but including those used for absences of less than a full day, as are used during a period of absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid. Credits so restored may not again be used for future absences attributable to the same injury or disease. In the event that the employee dies, resigns, retires or is terminated, cash payment for vacation and overtime credits, including any credits so restored, shall be made in accordance with applicable provisions. In any other case, an employee who returns to duty after absence on leave under this section shall have one year from the date of such return or restoration of credits to reduce his/her accrued leave credits, exclusive of personal leave, to the prescribed limits. Personal leave may not be restored as provided herein if the award of compensation is received more than 12 months following the personal leave anniversary date on which such personal leave was credited.

Upon request of the employee to report for duty from compensation leave, the appointing authority, if in doubt as to whether the employee is physically and mentally fit to perform the duties of the position, may require the employee to undergo medical examination, by a physician designated by the appointing authority, before the employee may be restored to duty pursuant to the procedures of section 5.9 of this Title.

In order to enable the appointing authority to make such determinations as are authorized or required under subdivisions (a) through (o) of this section, the appointing authority may require an employee at any time to be examined by a physician designated by the appointing authority.

The provisions of subdivisions (a) through (o) of this section shall not be construed to require extension of any employment beyond the time at which it would otherwise terminate or to require the granting of any leave benefits provided herein solely because of determinations made by the Workers' Compensation Board.

Except as otherwise provided in subdivisions (p) through (y) of this section, an employee necessarily absent from duty because of an injury or disease arising out of and in the course of State employment which occurred or was suffered on or after September 1, 1986 shall be allowed leave from his or her position in accordance with the provisions herein for the period during which the employee is unable to perform the duties of his or her position because of such injury or disease upon giving timely notice that such absence is the result of such injury or disease and that a claim has been or will be filed for benefits under the New York State Workers' Compensation Law. Such leave shall be permitted for all periods of absence resulting from such injury or disease, not to exceed a cumulative total of one year; provided, however, such leave may be continued for additional periods at the discretion of the appointing authority. Such leave may be denied or terminated if the appointing authority determines that the employee is permanently incapacitated or the employee's services would have otherwise been terminated or ceased under rule or law. No leave shall be allowed under subdivisions (p) through (y) of this section if the State Insurance Fund contests a claim filed by an employee, whether at the request of the appointing authority or on its own initiative, because it is alleged that such injury or disease did not occur on the job or the employee has not suffered any such injury or disease. If such claim is resolved in favor of the employee, eligibility for leave shall be determined as provided in this subdivision for all absences necessitated by the occupational injury or disease. In the event a person who has returned to work claims that he or she has suffered a reoccurrence of a previous injury or disease, which claim is then contested, such claim shall be deemed a new claim for the purpose of this subdivision unless resolved in favor of the employee.

An employee on leave from his or her position pursuant to subdivision (p) of this section shall receive compensation or pay benefits during such leave for each separate injury or disease occurring on or after September 1, 1986 as hereinafter provided:

An employee eligible for benefits pursuant to the Workers' Compensation Law who has used all leave accruals to which he or she is entitled and is not yet receiving payments pursuant to said Part 89 of this Title shall be granted advanced leave at full pay upon request filed with the appointing authority on a form to be provided by the State in accordance with and subject to the terms and conditions set forth in Part 89 of this Title.

An employee allowed leave under subdivisions (p) through (y) of this section may elect to draw accrued leave credits for part or all of such employee's absences from duty before being granted the supplemental benefit pursuant to Part 89 of this Title.

An employee who receives a supplemental benefit pursuant to Part 89 of this Title for any period of leave pursuant to subdivisions (p) through (y) of this section shall earn leave credits during such period in accordance with this article.

An employee on leave and receiving a supplemental payment pursuant to Part 89 of this Title in accordance with subdivision (q) of this section on days observed as holidays by the State as an employer shall not be eligible to observe such days as paid holidays, nor be eligible for compensatory time off in lieu thereof.

Notwithstanding any limitations on the accumulation of leave accruals to the contrary, an employee who uses his or her accrued leave credits or is granted sick leave at half-pay as provided in paragraphs (2) and (3) of subdivision (q) of this section shall be entitled to the restoration of such credits and such sick leave at half-pay eligibility as he or she may have used during any period of such absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid. Leave credits so restored may not be used in the future for absences attributable to the same injury or disease. In the event that the employee dies, resigns, retires or is terminated, payment for vacation and overtime credits, including appropriate payments for any credits so restored, shall be made in accordance with the applicable provisions of law, rule or regulation. An employee shall have one year from the date of return to duty or restoration of credits, whichever is later, to reduce his or her accrued leave credits, exclusive of personal leave, to the maximum limits otherwise prescribed in these rules. Personal leave shall not be restored to any employee if the award of compensation is received more than 12 months following the personal leave anniversary date on which such personal leave would have been otherwise credited.

Upon request of the employee to report for duty following absence due to occupational injury or disease, and prior to the expiration of the maximum period of allowed leave, if the appointing authority is uncertain as to whether the employee is physically and mentally fit to perform the duties of his or her position, the employee shall be required to be examined by a physician designated by the appointing authority before being permitted to return to duty pursuant to the procedures of section 5.9 of this Title.

Nothing in subdivisions (p) through (x) of this section shall be construed to require extension of any employment beyond the time at which it would otherwise terminate or be terminated.

An employee on leave from his or her position pursuant to subdivision (z) of this section shall, for each separate injury or disease occurring on or after September 1, 1994, be placed on workers' compensation disability leave without pay for all absences and shall receive benefits pursuant to the Workers' Compensation Law.

Notwithstanding any attendance rule to the contrary, and regardless of pay status, an employee absent in accordance with subdivision (aa) of this section shall earn leave credits for the first 12 cumulative months of such absence.

An employee on leave in accordance with subdivision (aa) of this section on days observed as holidays by the State as an employer, and who is not drawing against accrued leave credits pursuant to paragraph (bb)(1) of this section, shall not be eligible to observe such days as paid holidays nor be eligible for compensatory time off in lieu thereof.

Notwithstanding any limitations on the accumulation of leave accruals to the contrary, an employee who uses his or her accrued leave credits or is granted sick leave at half-pay as provided in subdivision (bb) of this section or in connection with a contested or controverted claim which is subsequently resolved in the employee's favor by the Workers' Compensation Board shall be entitled to the restoration of such credits and such sick leave at half-pay eligibility proportional to the net monetary award credited to New York State by the Workers' Compensation Board or proportional to 60 percent of the employee's gross salary, whichever is greater, as he or she may have used during any period of such absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid. Gross salary is defined as the employee's base annual salary rate plus inconvenience and location pay and geographic and shift differential pay to which the employee was entitled at the time of the accident. Leave credits so restored may not be used in the future for absences attributable to the same injury or disease. In the event that the employee dies, resigns, retires or is terminated, payment for vacation and overtime credits, including appropriate payments for any credits so restored, shall be made in accordance with the applicable provisions of law, rule or regulation. An employee shall have one year from the date of return to duty or restoration of credits, whichever is later, to reduce his or her accrued leave credits, exclusive of personal leave, to the maximum limits otherwise prescribed in these rules. Personal leave shall not be restored to any employee if the award of compensation is received more than 12 months following the personal leave anniversary date on which such personal leave would otherwise have been credited.

Upon request of the employee to report for duty following absence due to occupational injury or disease, and prior to the expiration of the maximum period of allowed leave, if the appointing authority is uncertain as to whether the employee is physically and mentally fit to perform the duties of his or her position, the employee shall be required to be examined by a physician designated by the appointing authority before being permitted to return to duty pursuant to the procedures of section 5.9 of the Rules for the Classified Service.

Nothing in subdivisions (z) through (gg) of this section shall be construed to require extension of any employment beyond the time at which it would otherwise terminate or be terminated.

If an employee who is not personally ill is required to remain absent because of quarantine, and presents a written statement of the attending physician or local health officer proving the necessity of such absence, such employee shall be granted leave with pay for the period of the required absence, without charge against leave credits. Prior to return to duty, such employee may be required to submit a written statement, from the local health officer having jurisdiction, that return to duty will not jeopardize the health of other employees.

The appointing authority shall grant any leave of absence, with pay, required by law.

Upon certification by the State Director of Civil Defense of the necessity for the participation in State or local civil defense drills of an employee enrolled as a civil defense volunteer and required to perform civil defense duties pursuant to the New York State Defense Emergency Act, the appointing authority may allow such employee to be absent, without loss of pay or charge against leave credits, for such time as is necessary for participation in such drills, but not exceeding cumulatively five workdays per calendar year.

Subject to prior approval by the appointing authority, each employee may be allowed time off without charge to leave credits to attend conferences or seminars of recognized professional organizations, such conferences or seminars to be directly related to the employee's profession or professional duties. Requests for such leave may be approved to the extent that such absence would not interfere with the proper conduct of governmental functions.

Except for the provisions of sections 28-1.2(i) and 28-1.3(h) of this Subpart, granting vacation and sick leave credits for the nine months'service preceding the date on which an employee becomes subject to this Chapter, nothing herein contained shall be construed to provide for the granting of retroactive vacation, sick leave or other time credits to any per diem or hourly paid employee for service rendered prior to August 14, 1958.

Upon exhaustion of military leave with pay provided pursuant to section 242 of the New York State Military Law, an employee holding a position designated as overtime ineligible may be granted leave with pay without charge to leave credits for any period(s) of less than a workweek during which such employee is ordered to temporary military duty.

This Subpart governs the transfer of vacation credits to eligible employees, as defined herein, for use for absences in connection with an illness or disability which did not arise in connection with such individual's employment.

In order to be eligible to receive donated credits an employee must be subject to this Part and eligible to earn leave accruals, must be absent due to a nonoccupational personal illness or disability for which medical documentation satisfactory to management is submitted as required, must have exhausted all leave credits and must be expected to be absent for at least two biweekly payroll periods following exhaustion of leave credits or sick leave at half-pay. The employee must not have had any disciplinary actions or unsatisfactory performance evaluations within his/her last three years of State employment.

Employees absent while charging donated leave credits pursuant to this Subpart shall not earn vacation and sick leave, shall not be granted personal leave and shall not be eligible to observe holidays. Absences charged to donated leave credits shall be treated as leave without pay for purposes of calculating vacation and personal leave anniversary dates.

Before absence for personal illness may be charged against donated leave credits, the appointing authority may require such proof of illness as may be satisfactory to it, or may require the employee to be examined, at the expense of the department or agency, by a physician designated by the appointing authority. In the event of failure to submit proof of illness upon request, or in the event that, upon such proof as is submitted or upon the report of medical examination, the appointing authority finds that there is not satisfactory evidence of illness sufficient to justify the employee's absence from the performance of his/her duties, such absence may be considered as unauthorized leave and shall not be charged against donated leave credits. Abuse of leave privileges shall be cause for disciplinary action.

The appointing authority may require an employee who has been absent because of personal illness charged to donated leave credits, prior to and as a condition of return to duty, to be examined, at the expense of the department or agency, by a physician designated by the appointing authority, to establish that such employee is not disabled from the performance of his/her normal duties and that the return to duty will not jeopardize the health of other employees.

Such donations shall not cause the donor employee to have fewer than 10 days of vacation standing to his/her credit upon making such donation. Employees may not donate vacation credits which would otherwise be forfeited.

Donated leave credits unused and standing to the recipient employee's credit at time of return to work or separation from State service shall be returned to the employees who donated those unused credits, except that credits donated to an employee employed in an agency other than that of the donor employee will not be returned.

During the effective period of an applicable donation exchange agreement between the Governor's Office of Employee Relations and an employee organization, recognized or certified pursuant to article 14 of the Civil Service Law to represent a bargaining unit of State employees, providing for donation of vacation credits, pursuant to an authorized leave donation program, to and from employees subject to this Subpart and employees subject to the leave donation program for that bargaining unit, such vacation credits may be donated by an employee who is subject to this Subpart to the benefit of an employee within the bargaining unit so represented, or received by an employee subject to this Subpart from an employee within such bargaining unit. Such vacation credits shall be donated, transferred and utilized in accord with the applicable donation exchange agreement and this Subpart or any such bargained program as applicable. Any donation exchange agreement shall be effective upon filing with the President of the Civil Service Commission and shall terminate 10 days after notice in writing by either party is served upon the president and the other party to the agreement.

This Subpart shall not be construed to require extension of any employment beyond the time it would otherwise terminate by operation of law, rule or regulation.