Article 21A: Medical Separation Leave Procedure

1. Effective August 25, 2016, the following procedures provide an alternative to the use of the Article 21 disciplinary process for employees who are unable to perform the duties of their positions by reason of a physical or mental incapacity. CUNY, in its discretion, may either commence disciplinary proceedings in accordance with Article 21 or may place an employee on a medical leave of absence (“medical leave”) according to the following procedures.

2. When in the judgment of CUNY an employee is unable to perform the duties of his or her position by reason of a physical or mental incapacity, including any such incapacity caused by substance abuse, and CUNY opts to follow the Medical Separation Leave procedures in lieu of Article 21, the president of the employee’s college, or his or her designee, having consulted with CUNY, shall send written notice of the facts providing the basis for CUNY’s judgment that the employee is not fit to perform the duties of his or her position (“the notice”), along with a copy of the employee’s job description, to the employee, the PSC, CUNY’s Office of the General Counsel and the PSC-CUNY Welfare Fund (“Welfare Fund”) at least fourteen (14) calendar days prior to the commencement of the medical leave. Such notice, stating the start date of the medical leave, shall be sent to the employee’s college email address, as well as to the employee’s home address on file by first class mail.

3. An employee who wishes to contest the placement on leave may, within fourteen (14) calendar days of the date of the notice, request an independent medical examination in accordance with paragraph 5 below, by written notice to the Welfare Fund, with copies to the PSC and to CUNY’s Office of the General Counsel. As a condition precedent to an independent medical examination, the employee must meet requirements regarding waivers, release forms and other documents specified by the Welfare Fund. Failure to do so will result in forfeiture of the opportunity to receive an independent medical examination.

4. The Welfare Fund Board of Trustees shall select and enter into a contract with a third-party vendor (“the provider”) that will provide Board-certified medical practitioners in appropriate areas of practice, including, but not limited to, psychiatry, neurology, orthopedic medicine and internal medicine, to conduct independent medical examinations in accordance with the terms of this Article.

Should the Welfare Fund fail to retain a provider—either within 90 calendar days of the ratification date of the successor to the 2007-2010 collective bargaining agreement or as needed in the future—the medical separation procedures set forth in this Article shall be considered null and void in their entirety.

5. Upon receipt of a written request from an employee seeking an independent medical examination, the Welfare Fund shall direct the provider to appoint a medical practitioner from an appropriate area of practice to conduct the examination and shall furnish the provider with a copy of CUNY’s notice and the employee’s job description referred to in paragraph 2. Within 60 calendar days of the Welfare Fund’s receipt of the employee’s request for a medical examination, the Welfare Fund shall deliver to CUNY’s Office of the General Counsel, with notice to the PSC of said delivery, a copy of the medical practitioner’s report regarding the employee’s fitness to perform the duties of his or her position and copies of the medical practitioner’s diagnoses, test results, observations and other data relied upon, if any. The Welfare Fund shall also provide copies of the report and the above-cited materials to the employee. The Welfare Fund shall maintain the originals in a confidential file.

(a) If the medical practitioner certifies that the employee is fit to perform the duties of his or her position, the employee shall be removed from medical leave and returned to active status within seven (7) calendar days following CUNY’s receipt of the medical practitioner’s report.

(b) If the medical practitioner certifies that the employee is not fit to perform the duties of his or her position, CUNY shall continue the employee’s medical leave of absence. CUNY shall send the employee and the PSC written notice of the continuation of the leave. The notice of continuation shall also inform the employee of his or her rights under Section 6 of these procedures.

6. Within fourteen (14) calendar days from receipt by the employee of medical certification that the employee is not fit to perform the duties of his or her position, the PSC may file a demand for arbitration on the question of the employee’s fitness for duty by serving written notice to that effect by certified mail, return receipt requested, directed to the Chancellor or the Chancellor’s designee. The parties shall designate an individual arbitrator to hear cases under this provision from among those mutually agreed to under Article 20.5 of the collective bargaining agreement, and the arbitration will be conducted in accordance with American Arbitration Association rules. The parties shall schedule a hearing to be held within 45 calendar days and completed within 90 calendar days of the University’s receipt of the demand for arbitration, and a decision shall be rendered by the arbitrator within 45 calendar days of the close of the hearing. Closing arguments shall be made orally at the last day of the hearing; closing briefs will not be submitted. The Arbitrator shall determine, based on the evidence, whether the employee is fit to perform the duties of his or her position. Should the arbitrator determine that the employee is not fit to perform the duties of his or her position, CUNY shall continue the employee’s medical leave of absence. Should the Arbitrator determine that the employee is fit to perform the duties of his or her position, the employee shall be removed from medical leave and returned to active status. The burden of proving mental or physical fitness shall be upon the employee. The costs of arbitration shall be borne equally by the parties.

7. A medical leave under this section shall be for one year from the start date of the Medical Separation Leave in the notice in paragraph 2. The employee shall remain in paid status for the first six months of the leave and thereafter may utilize his or her temporary disability leave and/or annual leave accruals, if any, and may apply for long-term disability to the extent available through the Welfare Fund, or to use the Catastrophic Sick Leave Bank or the Dedicated Sick Leave Program, in accordance with the terms of those policies, to the extent that he or she is eligible. An employee who is contesting his or her placement on medical leave or seeking to return to duty will not be eligible for the Sick Leave Bank or Dedicated Sick Leave Program, inasmuch as both programs require an acknowledgement from the employee that he or she is catastrophically ill (for the Sick Leave Bank) or seriously ill (for the Dedicated Sick Leave Program) and both require supporting medical documentation. Should the employee exhaust available accruals prior to the expiration of the medical leave, the remainder of the medical leave shall be unpaid.

8. An employee placed on medical leave may seek to return to duty by making a written application to the Welfare Fund, with copies to the PSC and to CUNY’s Office of the General Counsel, for a medical examination by a medical practitioner selected by the provider, who should be different from the medical practitioner who conducted the initial medical examination under paragraph 5 above, to the extent a different practitioner is available. Such application may be made no earlier than 120 days from the commencement of the medical leave and no later than one year from the commencement of the leave.

The procedures and time frames for the appointment of a medical practitioner and issuance of a report shall be the same as those in paragraph 5 above. If the medical practitioner certifies that such employee is fit to perform the duties of his or her position, the employee shall be removed from medical leave and returned to active status within seven (7) calendar days following CUNY’s receipt of the medical practitioner’s report. An arbitration filed in accordance with paragraph 6 above that is still pending at the time the employee applies for a return-to-duty medical examination under this paragraph 8 shall be deemed to be withdrawn with prejudice as of the date of receipt by the Welfare Fund of the medical practitioner’s report regarding the employee’s fitness to return to duty. The PSC shall notify the Arbitrator of the withdrawal.

9. After an employee has been on medical leave for one year, he or she shall be separated from employment at CUNY. No such separation shall occur if any proceedings to establish the employee’s fitness under these procedures are pending. When proceedings are completed, the employee shall either be separated from employment or returned to active status, according to the outcome.

10. Following any determination under section 5(a), section 6, or section 8 above that an employee is fit to perform the duties of his or her position or in the event that the report regarding the employee’s fitness is not delivered to CUNY within 60 calendar days of the Welfare Fund’s receipt of the employee’s request for an independent medical exam, CUNY may terminate the employee’s medical leave and commence disciplinary proceedings in accordance with Article 21.

11. To fund the establishment and administration of this program, CUNY shall deposit $35,000 per year into a dedicated fund with the Welfare Fund, from which the Welfare Fund may draw up to $5,000 per year in administrative costs. On or before July 31 of each year, the Welfare Fund shall provide CUNY with an annual accounting of the expenditures with regard to any or all independent medical examinations, including any medical tests conducted and administrative costs incurred during the prior fiscal year (July 1 through June 30). In addition to the annual accounting, the Welfare Fund shall notify CUNY in writing at such point in time as it has encumbered $25,000 of the funds dedicated to this program. Any funds remaining in one fiscal year shall be credited against CUNY’s contribution in the next fiscal year. Any shortfall in a given year shall be reimbursed by CUNY in the next fiscal year. Such reimbursement shall be made by September 30, provided that timely written notice of reaching the $25,000 threshold was given to CUNY. If the medical separation process is declared null and void pursuant to paragraph 4 above, or for any other reason, unexpended funds shall be returned to CUNY.