NY Court of Appeals Orders City to Bargain Over Disability Related Termination

The New York Court of Appeals has ruled that fire departments must bargain over the procedures used to terminate firefighters who have been on an extended work-related injury leave status. The case involved a Long Beach firefighter, Jay Gusler, who the city sought to terminate in 2015 after an extended injury-related leave.

The city’s decision to terminate Gusler was premised upon Civil Service Law § 71 as amended that, according to the city, authorized fire departments to remove firefighters unable to return after one-year. That law reads as follows:

  • § 71. Reinstatement after separation for disability. Where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen’s compensation law, he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position. … Such employee may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted 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 person is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant position for which he or she was eligible for transfer. If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years. In the event that such person is reinstated to a position in a grade lower than that of his or her former position, his or her name shall be placed on the preferred eligible list for his or her former position or any similar position. This section shall not be deemed to modify or supersede any other provisions of law applicable to the re-employment of persons retired from the public service on account of disability.

The city’s position was that § 71 allowed it to terminate employees who were off for over one-year. It notified Gusler that he was being terminated, but that he could request a hearing to dispute his termination. That prompted the Long Beach Professional Firefighters Association, IAFF Local 287 to demand the city bargain over the procedures used to implement § 71. The city refused prompting Local 287 to file an improper practice charge with the New York Public Employment Relations Board. Quoting from the decision:

  • The charge claimed that the City’s refusal to negotiate in good faith violated section 209-a (l) (d) of the Taylor Law.
  • On administrative appeal, PERB affirmed an Administrative Law Judge’s decision and concluded that under PERB’s precedents the City had an obligation to engage in collective bargaining prior to imposing procedures for terminating an employee covered by section 71.
  • PERB reasoned that “there is nothing inescapably implicit in [§] 71 which establishes the Legislature’s plain and clear intent to exempt employers from the State’s ‘strong and sweeping policy’ to support employer-employee negotiations.”

The city appealed the PERB’s decision, and the NY Supreme Court Appellate Division reversed, concluding the city did not have to bargain over §71. That prompted the union to appeal to the New York Court of Appeals. Quoting from the court of appeals decision:

  • The dispositive question on this appeal is whether the Taylor Law requires public employers to bargain over the pretermination procedures used in implementing Civil Service Law § 71. Based on the language and legislative history of section 71, we conclude that it does.
  • The Taylor Law requires public employers to collectively bargain over public employees’ “terms and conditions of employment.”
  • That requirement reflects the “strong and sweeping” public policy in favor of collective bargaining in this state.
  • The legislature enacted section 71 to address prolonged employee absences and “strike a balance between the recognized substantial State interest in an efficient civil service and the interest of the civil servant in continued employment in the event of a disability”
  • Prior to section 71’s enactment, “a civil service employer was unable to fill the vacancy created by [an] absent, disabled employee, short of the employee’s resignation, unless the employer instituted a disciplinary proceeding alleging incompetency or incapacity to perform, and the employee was dismissed after a hearing adjudging such ‘incompetency’.”
  • Section 71 provides an alternative by granting an employee with a work-related disability a leave of absence of up to one year and conditional reinstatement—even after that year has passed—while allowing the employer to fill the position if it chooses to terminate the employee.
  • Our review of section 71 reveals that “there is no ‘plain’ and ‘clear’ evidence that the Legislature intended” to foreclose from mandatory bargaining the procedures for terminating employees covered by the statute.
  • We disagree with the City that requiring municipalities to negotiate those pretermination procedures frustrates the legislative intent of allowing employers to maintain efficiency by quickly filling vacancies on a permanent basis after a year.
  • In the future, the City and the Union will only need to negotiate pretermination procedures as part of any new collective bargaining agreement, not every time the City seeks to terminate an employee.
  • Finally, the City raises concerns that the Union may use collective bargaining to undermine its right to terminate employees on disability at the appropriate time. But there are avenues to address those concerns—including, but not limited to, impasse arbitration or declaratory rulings by PERB—which would be subject to judicial review to the extent permitted under the CPLR.

With that, the court reinstated the PERB decision and ordered the city to bargain over the procedure to removing an employee under §71.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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