§ 72. Leave for ordinary disability. 1. When in the judgment of an
appointing authority an employee is unable to perform the duties of such
employee's position by reason of a disability, other than a disability
resulting from occupational 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 appointing authority that the employee is not fit to
perform the duties of such employee's position, and copies of any
written, electronic or other communication by the appointing authority
to a medical officer or any other entity regarding the claim that such
employee is unable to perform their duties pursuant to this section,
shall be provided to the employee, the authorized representative of such
employee and the civil service department or commission having
jurisdiction prior to the conduct of the medical examination. If, upon
such medical examination, such medical officer shall certify that such
employee is not physically or mentally fit to perform the duties of such
employee's position, the appointing authority shall notify such employee
that 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 and complete copies of all of the documentation,
reports and records relied upon by the medical officer during their
examination, including any documents, reports and correspondence sent to
the appointing authority at the conclusion of the examination. 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 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 class, certified or registered mail, return receipt
requested. Upon receipt of such request, the appointing authority shall
supply to the employee, 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
independent 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, 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
employee of the same appointing authority as the employee alleged to be
disabled. The hearing officer shall be vested with all of the powers of
the appointing authority, and shall make a record of the hearing which
shall, with such hearing officer's recommendation, be referred to the
appointing authority for review and 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 employee affected, be transmitted to
such employee without charge. The employee may be represented at any
hearing by counsel or a representative of a certified or recognized
employee organization and may present medical experts and other
witnesses or evidence. The employee shall be entitled to a reasonable
period of time to obtain such representation. 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 such employee's credit. The appointing authority in the final
determination shall notify the employee of 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. An employee placed on leave pursuant to subdivision one of this
section may, within one year after the date of commencement of such
leave of absence, or thereafter at any time until his or her employment
status is terminated, make application to the civil service department
or municipal commission having jurisdiction over the position from which
such employee is on leave, for a medical examination by a medical
officer selected for that purpose by such department or commission. If,
upon such medical examination, such medical officer shall certify that
such employee is physically and mentally fit to perform the duties of
his or her position, he or she shall be reinstated to his or her
position.

3. An employee who is certified as not physically or mentally fit to
perform the duties of his or her position and who is placed on leave of
absence pursuant to subdivision one of this section, or who is denied
reinstatement after examination pursuant to subdivision two of this
section, may appeal from such determination to the state or municipal
civil service commission having jurisdiction over his or her position.
Such employee and appointing officer or their representatives shall be
afforded an opportunity to present facts and arguments in support of
their positions including medical evidence at a time and place and in
such manner as may be prescribed by the commission. Provided however,
that in considering appeals pursuant to subdivision two of this section
where a hearing has not been held within nine months from the date of
notification pursuant to subdivision one of this section, the commission
shall designate an independent hearing officer who shall hold a hearing
and report thereon. The commission shall make its determination on the
basis of the medical records and such facts and arguments as are
presented to it. The final determination of the commission shall be
binding on both the employee and the appointing authority; provided,
however, that an employee or appointing authority may seek review of a
final determination of a commission in accordance with the provisions of
article seventy-eight of the civil practice law and rules.

4. If an employee placed on leave pursuant to this section is not
reinstated within one year after the date of commencement of such leave,
his or her employment status may be terminated in accordance with the
provisions of section seventy-three of this article.

5. Notwithstanding any other provisions of this section, if the
appointing authority determines that there is probable cause to believe
that the continued presence of the employee on the job represents a
potential danger to persons or property or would severely interfere with
operations, it may place such employee on involuntary leave of absence
immediately; provided, however, that the employee shall be entitled to
draw all accumulated unused sick leave, vacation, overtime and other
time allowances standing to his or her credit. If such an employee is
finally determined not to be physically or mentally unfit to perform the
duties of his or her position, he or she shall be restored to his or her
position and shall have any leave credits or salary that he or she may
have lost because of such involuntary leave of absence restored to him
or her less any compensation he or she may have earned in other
employment or occupation and any unemployment benefits he or she may
have received during such period.