Disability & Employment Law in New York State - Cornell University

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employer may terminate the employee permanently. 146 Within one year of terminationbased on disability, the former employee has the right to request a new medicalexamination, with a physician of the employer’s choice. 147 If the former employee isfound fit to return to work, s/he may be reinstated if the position is vacant, or to a similaror lower-level vacant position, or else will be put on a “preferred list” for futurevacancies. 148The NYCRR and the Civil Service Laws may operate together, in that once a personhas been denied return to work under the NYCRR, following voluntary medical leave,courts have determined that he/she can then be placed on de facto involuntary leave,and the Civil Service Laws then apply, meaning that under Section 73, the employeecan be permanently terminated one year later. 149 However, in another instance, a statecourt found that when an employee was terminated after being found unfit to return towork following voluntary leave under the NYCRR, the employee did not have the right toappeal the physician’s finding before he was terminated, as he would have under CivilService Law Section 72, despite the fact that his leave had become involuntary. 150While the relationship between the laws is not always consistently interpreted by thecourts, either can be a basis for termination based on disability.There have been limited attempts to use federal or state civil rights laws to challengedisability-based terminations under the Civil Service Law. 151 However, it is not clear thatthe New York Civil Service system complies with the ADA or NYSHRL, both of whichprovide for leave time as a reasonable accommodation and both of which would appearto require reinstatement upon return to work.In sum, the Civil Service Laws give government employers a high level of discretion indetermining whether employees are fit to work with disabilities or medical limitations.There is some concern that, because the state agencies are “repeat customers,” suchemployer-chosen medical providers may be more inclined to find employees unfit forwork than necessary. It should be acknowledged that in practice in some, though not all,civil service sectors, the employer who orders a medical examination may be a smaller146 N. Y. Civil Service Law § 73.147 Id.148 Id.149 See, e.g., Wells v. Johnson, 856 N.Y.S.2d 292 (N.Y.A.D. 3rd Dept. 2008); Cooperman v.Commissioner, Dept. of Correctional Services, 394 N.Y.S.2d 324(N.Y. App. Div. 3rd Dept. 1977).150 See, e.g., Sheeran v. New York State Dept. of Transp. 68 A.D.3d 1199 (N.Y.A.D. 3 Dept. 2009).151 See, e.g., Brady v. Dammer, 573 F.Supp.2d 712 (N.D.N.Y. 2008) (examination under Section 72 isnot an adverse employment action subject to the ADA); Jones v. New York City Housing Authority, 104F.3d 350 (2d Cir. 1996) (employee who made threats was not qualified); Baum v. Rockland County, 161Fed App’x 62 (2nd Cir. 2005) (requiring a medical examination is not an adverse employment action);Mair-Headley v. County of Westchester, 41 A.D. 3d 600 (N.Y. App. Div. 2nd Dept 2007) (employer notrequired to create a new light-duty position as a reasonable accommodation under the ADA). Courtshave found in favor of plaintiffs following termination, where the plaintiff’s disability was caused by aworkplace injury covered by workers’ compensation, Ross v. Town Bd. of Town of Ramapo, 78 A.D.2d656 (N.Y. App. Div. 3rd Dept. 1980), or when the employer terminated an employee who had been foundfit to return to work by the employer’s chosen physician, Bodnar v. New York State Thruway Authority, 52A.D.2d 345 (N.Y. App. Div. 3rd Dept 1976).To learn more go to http://www.nymakesworkpay.org21
Disability & Employment Law in New York State:Analysis and Recommendationspart of a larger state agency. In these instances, the choice of physician will not actuallybe up to the employee’s direct supervisor, and will be determined by a regional orumbrella entity, such as Civil Service Department Health Services. 152 Thisorganizational distance may reduce the likelihood that an immediate supervisor oremployer would be able to bias or exploit the medical examination process unfairly.However, in the event that an employee believes an employer’s decision is unfair or amedical review is not accurate, the statutes provide limited prospects for appeal.Employees may introduce external medical evidence in appeals processes before acourt, but as noted above, courts have repeatedly found for employers, even whereemployees presented their own medical evidence.As a point of comparison, it is notable that worker’s compensation processes in NewYork do, in contrast, allow workers to qualify for benefits, based on their own choice ofphysician. 153 An insurance carrier may also order an independent medical review, butthe worker’s self-selected physician is not presumptively less credible in any appeals orhearings. According to the EEOC, under the ADA, an employer may only require anemployee to submit to an employer-chosen medical review if the employee providesinsufficient documentation of disability for a reasonable accommodation. 154 However, anemployer may insist on its own choice of physician for purposes of determining whetheran employee poses a direct threat. 155IV New York CityNew York City’s Human Rights Law 156 provides:16. (a) The term "disability" means any physical, medical, mental orpsychological impairment, or a history or record of such impairment.(b) The term "physical, medical, mental, or psychological impairment"means:(1) An impairment of any system of the body; including, but notlimited to: the neurological system; the musculoskeletal system; thespecial sense organs and respiratory organs, including, but notlimited to, speech organs; the cardiovascular system; thereproductive system; the digestive and genito-urinary systems; thehemic and lymphatic systems; the immunological systems; the skin;and the endocrine system; or(2) A mental or psychological impairment.152 See, e.g., Sheeran v. New York State Dept. of Transp., 68 A.D.3d 1199 (N.Y.A.D. 3rd Dept. 2009)(where Department of Transportation employee was examined by medical professionals selected by theCivil Service Department Employee Health Physician).153 See New York State Workers Compensation Board, Workers’ Compensation: On the Job Injury orIllness, http://www.wcb.state.ny.us/content/main/Workers/Workers.jsp (last visited March 25, 2010).154 See EEOC Enforcement Guidance: Disability Related Inquiries and Medical Examinations ofEmployees Under the Americans with Disabilities Act, Question 11,http://www.eeoc.gov/policy/docs/guidance-inquiries.html#8.155 Id. Question 12.156 New York City Administration Code § 8, http://www.nyc.gov/html/cchr/html/hrlaw.html.22
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