S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8960
 
                             I N  S E N A T E
 
                               April 3, 2024
                                ___________
 
 Introduced  by  Sen. JACKSON -- read twice and ordered printed, and when
   printed to be committed to the Committee on Civil Service and Pensions
 
 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:
 
   Section  1.  Subdivision  1 of section 72 of the civil service law, as
 amended by chapter 547 of the laws  of  1984,  is  amended  to  read  as
 follows:
   1.  When  in  the  judgment  of an appointing authority an employee is
 unable to perform the duties of [his or her] SUCH EMPLOYEE'S position by
 reason of a disability, other than a disability resulting  from  occupa-
 tional  injury  or  disease as defined in the workers' compensation law,
 the appointing authority may require such employee to undergo a  medical
 examination  to  be conducted by a medical officer selected by the civil
 service department or municipal commission having jurisdiction.  Written
 notice of the facts providing the basis for the judgment of the appoint-
 ing authority that the employee is not fit to perform the duties of [his
 or  her]  SUCH EMPLOYEE'S position shall be provided to the employee and
 the civil service department or commission having jurisdiction prior  to
 the  conduct  of the medical examination. If, upon such medical examina-
 tion, such medical officer shall certify that such employee is not phys-
 ically or mentally fit to perform  the  duties  of  [his  or  her]  SUCH
 EMPLOYEE'S position, the appointing authority shall notify such employee
 that  [he  or  she]  THEY may be placed on leave of absence. An employee
 placed on leave of absence pursuant to this section  shall  be  given  a
 written statement of the reasons therefor. Such notice shall contain the
 reason  for the proposed leave and the proposed date on which such leave
 is to commence, shall be made in writing and  served  in  person  or  by
 first  class,  registered  or  certified mail, return receipt requested,
 upon the employee. Such notice shall also inform the employee of [his or
 her] THEIR rights under this procedure. An employee shall be allowed ten
 working days from service of the notice to object to the  imposition  of
 the  proposed leave of absence and to request a hearing. The request for
 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
 S. 8960                             2
 
 class,  certified  or  registered  mail,  return receipt requested. Upon
 receipt of such request, the appointing authority shall  supply  to  the
 employee,  [his or her] SUCH EMPLOYEE'S personal physician or authorized
 representative,  copies of all diagnoses, test results, observations and
 other data supporting the certification, and imposition of the  proposed
 leave  of  absence shall be held in abeyance until a final determination
 is made by the appointing authority as provided  in  this  section.  The
 appointing  authority  will  afford the employee a hearing within thirty
 days of the date of a request by the employee to be held by an independ-
 ent hearing officer agreed  to  by  the  appointing  authority  and  the
 employee except that where the employer is a city of over one million in
 population such hearing may be held by a hearing officer employed by the
 office  of administrative trials and hearings. If the parties are unable
 to agree upon a hearing officer, [he or she] SUCH HEARING OFFICER  shall
 be  selected  by  lot  from  a  list  of persons maintained by the state
 department of civil service. The hearing officer shall not be an employ-
 ee of the same appointing authority as the employee alleged to be  disa-
 bled.    [He or she] THE HEARING OFFICER shall be vested with all of the
 powers of the appointing authority, and shall make a record of the hear-
 ing which shall, with [his or her recommendation,  be  referred  to  the
 appointing  authority  for  review  and] SUCH HEARING OFFICER'S decision
 [and which shall] be provided to the affected employee free of charge. A
 copy of the transcript of the hearing shall, upon request of the employ-
 ee affected, be transmitted to [him] SUCH EMPLOYEE without  charge.  The
 employee  may  be  represented  at any hearing by counsel or a represen-
 tative of a certified or recognized employee organization and may  pres-
 ent  medical experts and other witnesses or evidence. The employee shall
 be entitled to a reasonable period of  time  to  obtain  such  represen-
 tation. The burden of proving mental or physical unfitness shall be upon
 the  person  alleging  it.  Compliance  with technical rules of evidence
 shall not be required. [The appointing authority  will  render  a  final
 determination  within  ten  working  days  of the date of receipt of the
 hearing officer's report and recommendation.  The  appointing  authority
 may  either  uphold  the  original  proposed notice of leave of absence,
 withdraw such notice or modify the notice as appropriate.] In any event,
 a final determination of an employee's contest  of  a  notice  of  leave
 shall be rendered within seventy-five days of the receipt of the request
 for  review.  An  employee on such leave of absence shall be entitled to
 draw all accumulated, unused sick leave, vacation,  overtime  and  other
 time  allowances  standing  to  [his or her] SUCH EMPLOYEE'S credit. The
 [appointing authority] HEARING OFFICER in the final determination  shall
 notify  the  APPOINTING  AUTHORITY  OR THE employee of [his or her] SUCH
 EMPLOYEE'S right to appeal from such determination to the civil  service
 commission  having  jurisdiction in accordance with subdivision three of
 this section.
   § 2. This act shall take effect immediately.