Section 72. Leave for ordinary disability

1. When  in the judgment of an
  appointing authority an employee is unable to perform the duties of  his
  or  her  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  his  or  her 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 examination, such medical officer shall certify  that  such
  employee  is not physically or mentally fit to perform the duties of his
  or her position, the appointing authority  shall  notify  such  employee
  that  he or she 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
  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, his
  or her 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, he or she 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. He or she shall be
  vested with all of the powers of the  appointing  authority,  and  shall
  make   a   record   of   the  hearing  which  shall,  with  his  or  her
  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  him  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 his or her credit. The  appointing
  authority in the final determination shall notify the employee of his or
  her  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.