Health insurance for certified and support staffs will be in accordance with their respective negotiated agreements.
Continuation of Medical Insurance Coverage at Termination of Employment
Under the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), employees and their dependents are eligible to continue their insurance coverage for up to 36 months when termination of their insurance is due to a reduction in their hours worked, or upon termination of their employment.
Dependents of employees are eligible to continue their insurance for up to 36 months upon occurrence of one of the following events:
a) Death of the covered employee; or
b) Divorce or legal separation from the covered employee; or
c) An employee becomes eligible for Medicare and ceases to participate in the employer-sponsored plan; or
d) The dependents of a covered employee reach the maximum age for dependent coverage.
Those who are eligible to continue coverage have up to 60 days to complete the Continuation of Coverage Election Form. Premiums and administrative costs will be paid in accordance with law.
American Recovery and Reinvestment Act of 2009, Public Law 111-5 Consolidated Omnibus Budget Reconciliation Act of 1985
Insurance Law Section 3221(m)(4)(5) and (6)
Employees injured in the performance of their duties are covered by Workers’ Compensation Insurance. Employees will report work-related injuries immediately to their immediate supervisor. Delay in reporting, if necessary, must be justified to the satisfaction of the Board and/or the insurance agency.
Reimbursement for Workers’ Compensation Insurance benefits will be in accordance with their respective negotiated agreements.
Education Law Sections 1604(31), 1709(34) and 2503(10)
EMPLOYEE ASSISTANCE PROGRAM (EAP)
The District will provide an Employee Assistance Program for employees who are experiencing personal difficulties. The purpose of the program is to assist employees in obtaining help to resolve such problems in an effective and confidential manner. This program recognizes that the primary obligation to seek assistance and to resolve the problem rests with the employee.
The Board recognizes that a wide range of problems that are not directly associated with an employee’s job function may have an effect on an employee’s job performance. The problems may involve physical illness, mental or emotional illness, alcohol abuse or alcoholism, drug abuse or dependency, tobacco abuse or personal problems such as those of a marital, family, or financial nature.
A joint District/employee organization committee will be established to assist in the implementation of this policy.
DEFENSE AND INDEMNIFICATION OF BOARD MEMBERS AND EMPLOYEES
Liability Protection in Accordance with Education Law
The Board recognizes its statutory obligation to indemnify District employees (and in certain circumstances, Board members and volunteers) in accordance with the provisions of Education Law Sections 3023, 3028 and 3811. For the purposes of this policy, the term “employee” will be as defined in the applicable statute(s).
The District will not be subject to the duty to defend unless the employee, within the time prescribed by statute, delivers appropriate notice of the claim to the Board.
a) For purposes of Education Law Section 3811, the employee must give written notice within five days after service of process upon him or her. The statute mandates only written notice of the claim to the Board; however, submission of relevant legal documents by the employee to the Board is also encouraged.
b) For purposes of Education Law Sections 3023 and 3028, the employee must deliver the original or a copy of the relevant legal documents to the Board within ten days after service of process upon him or her.
The District will provide legal defense and/or indemnification for all damages, costs, and reasonable expenses incurred in the defense of an action or proceeding if authorized in accordance with statute and provided that the alleged action or omission which occurred or allegedly occurred is covered by the appropriate statute(s). Furthermore, the District will not be required to provide indemnification protection and/or legal defense unless the employee was, at the time of the alleged incident, acting in the discharge of his or her duties within the scope of his or her employment or authorized volunteer duties and/or under the direction of the Board.
Public Officers Law Section 18
The Board hereby also confers the benefits of New York State Public Officers Law Section 18 upon the “employees” of the District, as defined in Public Officers Law Section 18; and the District assumes the liability for the costs incurred in accordance with the provisions of Public Officers Law Section 18. The benefits accorded to District employees under Public Officers Law Section 18 will supplement and be available in addition to defense or indemnification protection conferred by other enactment or provisions of law.
The term “employees” will include members of the Board; the Superintendent; District officers; District employees; volunteers expressly authorized to participate in a District sponsored volunteer program; or any other person holding a position by election, appointment or employment in the service of the District, whether or not compensated. The term “employee” will also include a former employee, his or her estate or judicially appointed representative.
In accordance with the provisions of Public Officers Law Section 18, and upon compliance by the employee with the requirements of this statute, the District will provide for the defense of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his or her public employment or duties.
Furthermore, the District will indemnify and save harmless its employees in the amount of any judgment obtained against such employees in a state or federal court, or in the amount of any settlement of a claim, provided that the act or omission from which such judgment or claim arose occurred while the employee was acting within the scope of his or her public employment or duties. However, in the case of a settlement, the duty to indemnify and save harmless will be conditioned upon the approval of the amount of the settlement by the Board.
The duty to defend and/or indemnify and save harmless, in accordance with Public Officers Law Section 18, will be conditioned upon the delivery by the employee to the School Attorney or to the Superintendent a written request to provide for his or her defense, together with the original or a copy of any summons, complaint, process, notice, demand or pleading within ten days after he or she is served with such document. In accordance with Public Officers Law Section 18, the full cooperation of the employee in the defense of such action or proceeding and in the defense of any action or proceeding against the District based upon the same act or omission, and in the prosecution of any appeal, will also be required as a condition for the District’s duty to defend and/or indemnify and save harmless to exist.
Exceptions to Liability Coverage
Indemnification coverage and/or provision of legal defense by the District will not apply unless the actionable claim is of the type covered by the statute(s) and/or is not otherwise exempt from coverage in accordance with law. Additionally, indemnification coverage and/or the duty to provide a defense will not arise where such action or proceeding is brought by or on behalf of the District.
Paul D. Coverell Teacher Protection Act of 2001, as authorized by the No Child Left Behind Act of 2001,
20 United States Code (USC) Section 6731 et seq.
Education Law Sections 1604(25), 1604(31-b), 1709(26), 1709(34-b), 2560, 3023, 3028 and 3811
General Municipal Law Sections 6-n and 52
Public Officers Law Section 18
LEAVES OF ABSENCE
a) In general, leaves of absence:
1. Will be administered by the Superintendent.
2. The Board reserves the right to grant leaves of absence for purposes or under conditions not contemplated or considered in the policy statement.
3. Under laws and rules governing such action, the Board may undertake appropriate disciplinary action where a leave of absence is falsely requested or improperly used.
4. Except by permission of the Superintendent, as expressed in writing, the purpose or conditions of a leave of absence may not be altered.
b) Leaves of absence, contractual, et al:
1. Employees who are members of a negotiating unit:
Authorization is granted to approve requests for leaves of absence submitted in accordance with provisions of contracts in effect between the District and each bargaining unit.
2. Employees who are not members of a negotiating unit:
Authorization is granted to approve requests for leaves of absence submitted by such employees where such requests are consistent with provisions of contracts in effect between the District and the bargaining unit most compatible with the employment status of the employee.
3. Employees who are under contract to the District:
Authorization is granted to implement provisions for leaves of absence contained in each such contract.
c) Leaves of absence, unpaid, not covered in b) 1. above:
1. Subject to limitations enumerated in this policy statement, authorization is granted for the following unpaid leaves of absence.
(a) For a period of time not to exceed one school year for approved graduate study, such leave to include any required internship experience.
(b) At the expiration of a paid sick leave of absence, to extend such a leave of absence for a period of time not to exceed the end of the school year next succeeding the school year in which the paid leave of absence commenced.
2. Unpaid leaves of absence will not be used to extend vacation periods, to take vacations, to engage in other occupations, or to provide additional personal leaves, except that the Superintendent will have discretion, where circumstances warrant, to approve leaves of absence for such purposes.
3. Unpaid leaves of absence will not be granted unless the services of a substitute employee, satisfactory in the discretion of the Superintendent, can be secured.
4. Except where it interferes with an employee’s legal or contractual rights, the timing of unpaid leaves of absence will be granted at the convenience of the District.
d) Other leaves of absence:
1. Emergency Service Volunteer Leave
Upon presentation of a written request from the American Red Cross and with the approval of the Superintendent, employees certified by the American Red Cross as disaster volunteers will be granted leave from work with pay for up to 20 days in any calendar year to participate in specialized disaster relief operations. This leave will be provided without loss of seniority, compensation, sick leave, vacation leave or other overtime compensation to which the volunteer is otherwise entitled.
2. Screenings for Breast Cancer and Prostate Cancer
Employees will be granted up to four hours of leave on an annual basis to undertake a screening for breast cancer; employees will be granted up to four hours of leave on an annual basis to undertake a screening for prostate cancer (i.e., male employees are entitled to a total of eight hours for both screenings). This leave will be excused leave and will not be charged against any other leave to which the employee is entitled.
3. Blood Donation
Employees desiring to make blood donations will be granted three hours of leave in any 12 month period. The leave may not exceed three hours unless agreed to by the Superintendent/designee. Additional leaves for the purpose of blood donation under any other provision of law will not be prevented.
4. Bone Marrow Donation
Employees seeking to undergo a medical procedure to donate bone marrow will be granted leaves to do so, the combined length of the leaves to be determined by the physician, but may not exceed 24 work hours unless agreed to by the Superintendent/designee. The District will require verification for the purpose and length of each leave requested by the employee for this purpose.
5. Nursing Mothers
The District will provide reasonable unpaid break time or permit the use of paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following child birth. The District will make reasonable efforts to provide a room or other location in close proximity to the work area where the nursing mother can express milk in privacy.
6. Victims of Domestic Abuse
Employers are required to provide employees with an unpaid leave to appear as a witness, consult with the district attorney, or exercise the employee’s statutory rights as the victim of, or witness to a crime of domestic violence. In addition, a victim of domestic violence may need one or more of these types of leave.
To use this leave, the employee will provide notice of the need for leave at any time prior to the actual day of leave. Employers are permitted to ask the employee who sought the attendance or testimony of the employee to provide verification of the employee’s service. Penalizing or discharging an employee for absences by reason of a required appearance as a witness in a criminal proceeding, or consultation with the district attorney, or exercising his or her rights as provided under the law constitutes a Class B misdemeanor by the employer.
7. Military Leave
The District will comply with state and federal laws regarding military leave and re-employment.
Leaves of absence for military spouses are granted in accordance with law and regulation.
Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 United States Code
(USC) Sections 4301-4333
Civil Service Law Sections 71-73, 159-b and 159-c
Education Law Sections 1709(16), 3005, 3005-a and 3005-b
General Municipal Law Section 92-c
Labor Law Sections 202-a, 202-c, 202-i and 202-j
Military Law Sections 242 and 243
FAMILY AND MEDICAL LEAVE ACT
The Board, in accordance with the Family and Medical Leave Act of 1993 (as amended) (FMLA), gives “eligible” employees of the District the right to take unpaid leave for a period of up to 12 workweeks in a twelve-month period as determined by the District.
The District uses a “rolling” 12 month period measured backward from the date of any FMLA leave usage as its method for calculating the leave year period for the commencement of the FMLA leave period. In certain cases, FMLA leave may be taken on an intermittent basis rather than all at once, or the employee may work a part-time schedule.
The entitlement to leave for the birth or placement of a child will expire at the end of the 12 month period beginning on the date of such birth or placement.
Employees are “eligible” if they have been employed by the District for at least 12 months and for at least 1,250 hours of service during the previous twelve-month period. Full-time teachers are deemed to meet the 1,250 hour test. However, a break in employment for military service (i.e., call to active duty) should not interrupt the 12 month/1,250 hours of employment requirement and should be counted toward fulfilling this prerequisite. The law covers both full-time and part-time employees.
Qualified employees may be granted leave for one or more of the following reasons:
a) The birth of a child and care for the child;
b) Adoption of a child and care for the child;
c) The placement with the employee of a child in foster care;
d) To care for a spouse, minor child or parent who has a “serious health condition” as defined by the FMLA;
e) To care for an adult child who is also incapable of self-care due to a disability (regardless of date of the onset of disability) and has a “serious health condition” as defined by the FMLA; and/or
f) A “serious health condition” of the employee, as defined by the FMLA, that prevents the employee from performing his or her job.
A “serious health condition” is defined as an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider that renders the person incapacitated for more than three consecutive calendar days. Furthermore, the first visit to a health care provider for an employee claiming a “serious health condition” under FMLA must occur within seven days of the aforementioned incapacity with the second required visit occurring within 30 days of the incapacitating event. In order for an employee to claim the need for continuous treatment under FMLA for a chronic serious health condition, the condition must require a minimum of two visits per year to a healthcare provider, continue over an extended period of time, and may cause episodic rather than a continuing period of incapacity. A “serious health condition” is also defined as any period of incapacity related to pregnancy or for prenatal care.
Military Family Leave Entitlements
Military Caregiver Leave
An eligible employee who is the spouse, son, daughter, parent, or next of kin (defined as the nearest blood relative) is entitled to up to 26 weeks of leave in a single 12 month period to care for a “military member” who is:
a) Recovering from a service-connected serious illness or injury sustained while on active duty; or
b) Recovering from a serious illness or injury that existed prior to the service member’s active duty and was aggravated while on active duty; or
c) A veteran who has a qualifying injury or illness from service within the last five years and aggravates that illness or injury.
This military caregiver leave is available during a single 12 month period during which an eligible employee is entitled to a combined total of 26 weeks of all types of FMLA leave. Military Caregiver Leave may be combined with other forms of FMLA-related leave providing a combined total of 26 weeks of possible leave for any single 12 month period; however, the other form of FMLA leave when combined cannot exceed 12 of the 26 weeks of combined leave. Military Caregiver Leave has a set “clock” for calculating the 12 month period for when FMLA leave begins and tolling starts at the first day of leave taken.
The term “military member” means:
a) A member of the Regular Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
b) A veteran (discharged or released under condition other than dishonorable) who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of five years preceding the date on which the veteran undergoes that medical treatment, recuperation or therapy.
“Qualifying Exigency” Leave/Call to Active Duty
An “eligible” employee is entitled to FMLA leave because of “a qualifying exigency” arising out of circumstances where the spouse, son, daughter, or parent of the employee is serving in the regular Armed Forces who is deployed to a foreign country or either the National Guard or the Reserves and is on active duty during a war or national emergency called for by the President of the United States or Congress, or has been notified of an impending call to active duty status, in support of a contingency operation.
A “qualifying exigency” related to families of the Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve and Coast Guard Reserve personnel on (or called to) active duty to take FMLA protected leave to manage their affairs is defined as any one of the following reasons:
a) Short-notice deployment;
b) Military events and related activities;
c) Childcare and school activities;
d) Parental care leave;
e) Financial and legal arrangements;
g) Rest and recuperation (for up to fifteen  calendar days);
h) Post-deployment activities; and
i) Any additional activities where the employer and employee agree to the leave.
In any case in which the necessity for leave due to a qualifying exigency is foreseeable, the employee will provide such notice to the employer as is reasonable and practicable. This military-related leave is for up to 12 weeks during a single 12-month period. Leave may be taken intermittently or on a reduced leave schedule.
At the Board’s or employee’s option, certain types of paid leave may be substituted for unpaid leave.
An employee on FMLA leave is also entitled to have health benefits maintained while on leave. If an employee was paying all or part of the premium payments prior to leave, the employee will continue to pay his or her share during the leave period.
In most instances, an employee has a right to return to the same position or an equivalent position with equivalent pay, benefits and working conditions at the conclusion of the leave.
The Board has a right to 30 days advance notice from the employee where practicable. In addition, the Board may require an employee to submit certification from a health care provider to substantiate that the leave is due to the “serious health condition” of the employee or the employee’s immediate family member. Under no circumstance should the employee’s direct supervisor contact any health care provider regarding the employee’s condition; all contact in this manner must be made by a health care provider (employed at the employer), a human resource professional, a leave administrator or a management official. If the medical certification requested by the employer is found to be deficient, the employer must indicate where the errors are, in writing, and give the employee seven days to provide corrected materials to cure any deficiency prior to any action being taken.
Special Provisions for School District Employees
An instructional employee is an employee whose principal function is to teach and instruct students in a class, a small group, or an individual setting (e.g., teachers, coaches, driving instructors, special education assistants, etc.). Teaching assistants and aides who do not have instruction as the principal function of their job are not considered an “instructional employee.”
Intermittent Leave Taken By Instructional Employees
FMLA leave that is taken at the end of the school year and resumes at the beginning of the next school year is not regarded as intermittent leave but rather continuous leave. The period in the interim (i.e., summer vacation) is not counted against an employee and the employee must continue to receive any benefits that are customarily given over the summer break.
Intermittent leave may be taken but must meet certain criteria. If the instructional employee requesting intermittent leave will be on that leave for more than 20% of the number of working days during the period for which the leave would extend, the following criteria may be required by the employer:
a) Take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or
b) Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring periods of leave than does the employee’s regular position.
Appropriate notice for foreseeable FMLA leave still applies and all employees must be returned to an equivalent position within the District. Additional work-related certifications, requirements and/or training may not be required of the employee as a contingent of their return to work.
Leave Taken by Instructional Employees Near the End of the Instructional Year
There are also special requirements for instructional employees taking leave and the leave’s relation to the end of the term. If the instructional employee is taking leave more than five weeks prior to the end of the term, the District may require that the employee take the leave until the end of the term if the leave lasts more than three weeks and the employee was scheduled to return prior to three weeks before the end of the term.
If the instructional employee is taking leave less than five weeks prior to the end of the term for any of the following FMLA-related reasons except qualifying exigency, the District may require that the employee remain out for the rest of the term if the leave lasts more than two weeks and the employee would return to work during that two week period at the end of the instructional term.
If the instructional employee begins taking leave during the three weeks prior to the end of the term for any reason except qualifying exigency, the District may require that the employee continue leave until the end of the term if the leave is scheduled to last more than five working days.
Any additional time that is required by the employer due to the timing of the end of the school year, will not be charged against the employee as FMLA leave because it was the employer who requested that the leave extend until the end of the term.
A notice which explains the FMLA’s provisions and provides information concerning the procedures for filing complaints of violations of the FMLA will be posted in each school building and a notice of an employee’s FMLA rights and responsibilities will be either placed in the employee handbook of the employer or furnished to each new employee upon hire. The employer has five days to supply such notice from the date of hire.
Administration is directed to develop regulations to implement this policy, informing employees of their rights and responsibilities under the FMLA.
Family and Medical Leave Act of 1993 (as amended), Public Law 103-3
National Defense Authorization Act of 2008, Public Law 110-181
10 USC 101(a) (13)
29 USC 1630.1 and 2611-2654
29 CFR Part 825 and Part 1630
42 USC 12102
Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191 45 CFR Parts 160 and 164
UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA)/MILITARY LEAVES OF ABSENCE
In accordance with the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and State Law, the District, upon advance notice by the employee, will grant leaves of absence for service in the uniformed services and/or military duty (hereinafter referred to as “military service” or “military duty”) to its employees who are ordered to duty or volunteer for qualifying military service. The employee’s notice may be either verbal or written. No advance notice is required if military necessity prevents the giving of notice, or the giving of notice is otherwise impossible or unreasonable under all the circumstances.
Time during which an employee is absent in accordance with military leave will not constitute an interruption of continuous employment in the District and no such employee will be subjected, directly or indirectly, to any loss or diminution of time service, increment, vacation or holiday privileges, or any other right or privilege, by reason of such absence; nor will any employee be prejudiced by reason of such absence with reference to continuance in employment, reemployment, reinstatement, transfer or promotion.
Every employee will be paid his or her salary or other compensation for any and all periods of absence while engaged in the performance of ordered military duty, and while going to and returning from such duty. This payment of salary/compensation will not exceed a total of 30 days or 22 working days, whichever is greater, in any one calendar year; and will not exceed 30 days or 22 working days, whichever is greater, in any one continuous period of such absence.
The employee must be permitted, upon request, to use any accrued vacation, annual, or similar leave with pay during the period of military service in order to continue his or her civilian pay. The District may not require the employee to use accrued leave.
The employee is not entitled to use accrued sick leave during the period of military service, unless the District allows employees to use sick leave for any reason or allows other similarly situated employees on comparable furlough or leave of absence to use accrued paid sick leave.
Health Plan Coverage
If the employee has coverage under a health plan in connection with his or her employment with the District, the employee must be permitted to elect to continue the coverage for a certain period of time as designated in law.
When the employee is performing military service, he or she is entitled to continuing coverage for himself/herself (and dependents if the plan offers dependent coverage) under a health plan in connection with the employment. The plan must allow the employee an opportunity to continue coverage for a period of time that is the lesser of:
a) The 24-month period beginning on the date on which the employee’s absence for the purpose of performing military service begins; or
b) The period beginning on the date on which the employee’s absence for the purpose of performing military service begins, and ending on the date on which the employee fails to return from service or apply for a position of reemployment.
Health plan administrators may develop reasonable requirements addressing how continuing coverage may be elected, consistent with the terms of the plan and USERRA’s exceptions to the requirement that the employee give advance notice of military service. Further, health plan administrators may develop reasonable procedures for employee payment to continue coverage, consistent with USERRA and the terms of the plan.
While on military duty, any District employee who is a member of any pension or retirement system may elect to contribute to such pension or retirement system the amount which he or she would have contributed had such employment been continuous. Upon making such contribution, the employee will have the same rights in respect to membership in the retirement system as he or she would have had if the employee had been present and continuously engaged in the performance of his or her position. To the extent that such contributions are paid, absence while engaged in the performance of military duty will be counted in determining the length of total service under such pension or retirement system.
Alternatively, employees will have an opportunity to make up contributions to the pension or retirement system upon return to employment in the District in accordance with law and the individual employee’s pension/retirement system.
The payment of member contributions required under law to obtain military service credit is waived for members called to active military duty on or after September 11, 2001 and prior to January 1, 2006, as the result of Non-Contributory Military Service Credit legislation signed as Chapter 326 of the Laws of 2005.
Time during which an employee is absent on military duty will not constitute an interruption of continuous employment, but such time will not be counted or included in determining the length of total service in the pension or retirement system unless the employee contributes to the pension or retirement system the amount he or she would have been required to contribute if the employee had been continuously employed during the period of military duty.
Leaves of Absence for Military Spouses
The spouse of a member of the armed forces of the United States, national guard or reserves who has been deployed during a period of military conflict (defined as a period of war declared by the United States Congress, or in which a member of a reserve component of the armed forces is ordered to active duty in accordance with the United States Code), to a combat theater or combat zone of operations will be allowed up to ten days unpaid leave by their employer. Such leave will only be used when such person’s spouse is on leave from the armed forces of the United States, National Guard or reserve while deployed during a period of military conflict to a combat theater or combat zone of operations.
In accordance with law, an employee means a person who performs services for hire for the District for an average of 20 or more hours per week, and includes all individuals employed at any District site having 20 or more District employees, but will not include independent contractors.
An employer will not retaliate against an employee for requesting or obtaining a leave of absence as provided above. The provisions of this section will not affect or prevent an employer from providing leave for military spouses in addition to leave allowed under any other provision of law. The provisions of this section will not affect an employee’s rights with respect to any other employee benefit provided by law.
Reemployment/Restoration Rights (“Escalator Principle”)
Per USERRA, as a general rule, the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to military service. The position to which the returning service member should be restored has become known as the “escalator position.” The escalator principle requires that the employee be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job benefits that he or she would have attained if not for the period of military service.
Depending on the circumstances/intervening events, the escalator principle may cause an employee to be reemployed in a higher or lower position, transferred, laid off, or even terminated.
The employee must be qualified for the reemployment position. The District will make reasonable efforts to help the employee become qualified to perform the duties of this position. The District is not required to reemploy the employee on his or her return from military service if the employee cannot, after reasonable efforts by the District, qualify for the appropriate reemployment position.
Per State law, an employee restored to his or her position after the termination of military duty will be entitled to the rate of compensation he or she would have received had the employee remained in his or her position continuously during the period of military duty; and the employee will be deemed to have rendered satisfactory and efficient service in the job position during the period of military leave of absence. Further, the employee will not be subjected directly or indirectly to any loss of time service, increment, or any other right or privilege; nor will an employee be prejudiced in any way with reference to promotion, transfer, reinstatement or continuance in employment.
All other rights, benefits, and responsibilities of a District employee serving in the military will be in accordance with law, regulations, and/or the applicable contract/collective bargaining agreement.
Public Employees in General
If a public employee (with the exception of the probationary service of “teachers” as described below) enters military duty before the expiration of the probationary period in any position to which he or she may have been appointed, or to which he or she may thereafter be appointed or promoted, the time such employee is absent on military duty will be credited as satisfactory service during this probationary period.
In any case where a “teacher” (as defined in State Education Law Section 3101, the term “teacher” encompasses a broad category of full-time members of the teaching and supervisory staff of the District, and is not limited to “instructional” employees) enters military duty before the expiration of the probationary period to which he or she may have been appointed, the time the “teacher” is absent on military duty will be credited as satisfactory service during this probationary period. If the end of such probationary service occurs while the “teacher” is on military duty or within one year following the termination of military duty, the period of the probationary service may be extended by the Board for a period not to exceed one year from the date of termination of military duty. However, in no event will the period of probationary service in the actual performance of teaching services extend beyond that required by the District at the time of the “teacher’s” entry into military service.
Collective Bargaining Agreements/Contracts/Plans/Practices
In accordance with USERRA, any State or local law, contract, agreement, policy, plan, or practice that establishes an employment right or benefit that is more beneficial than, or is in addition to, a right or benefit under USERRA, such greater employment right or benefit will supersede this Federal Law.
Notice of Rights and Duties
The District will provide a notice of the rights, benefits and obligations of employees and the District under USERRA. The District may provide the notice by posting it where employee notices are customarily placed. The District may also provide such notice to its employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (e.g., by handing or mailing out the notice, or distributing the notice via electronic mail).
The U.S. Department of Labor has developed and made available on its website http://www.dol.gov/vets/programs/userra/poster.htm a poster for use by private and State employers (including school districts) that can be posted in order to comply with the notification mandate.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), Public Law 108-454 38 United States Code (USC) Sections 4301-4333
20 Code of Federal Regulations (CFR) Part 1002
Education Law Section 3101
Military Law Sections 242 and 243
DETERMINATION OF EMPLOYMENT STATUS: EMPLOYEE OR INDEPENDENT CONTRACTOR
Regulations promulgated by the Office of the State Comptroller provide guidance to school districts to help them determine whether an individual is an employee, and therefore eligible for membership in the New York State and Local Retirement System (NYSLRS) and for service credit, or an independent contractor who is not eligible for membership.
A certification of the determination that an individual is an employee will now be required when the District initially reports to the NYSLRS certain covered professionals — those persons providing services as an attorney, physician, engineer, architect, accountant or auditor.
Employee will mean an individual performing services for the District for which the District has the right to control the means and methods of what work will be done and how the work will be done. Independent contractor will mean a consultant or other individual engaged to achieve a certain result who is not subject to the direction of the employer as to the means and methods of accomplishing the result. (Guidance from the New York State Education Department emphasizes that Districts and BOCES do not have the authority to enter into agreements with independent contractors for instructional services).
Employees to be Reported to NYSLRS
Only persons who are active members of NYSLRS and who have been assigned a registration number will be included in the reporting requirements. In the case of employees who are in the process of being registered to membership, all service, salary and deductions data and mandatory contributions will be accumulated by the District and such accumulation will be included with the first monthly report which is due after the employee’s registration number has been assigned.
An individual serving the District as an independent contractor or consultant is not an employee and should not be reported to the retirement system.
The District has the primary responsibility for determining whether an individual is rendering services as an employee or as an independent contractor. When making such a determination the District must consider the factors enumerated in State Regulations.
The District will also complete, as necessary, a Certification Form for Individuals Engaged in Certain Professions (Form RS2414) as promulgated by the Office of the New York State Comptroller. As noted on the Certification Form instructions, when making a determination as to an individual’s status as an employee or independent contractor, no single factor should be considered to be conclusive of the issue. All factors should be considered in making an assessment of an individual’s status when engaged to perform services.
Written Explanation by District: Certain Professions
In the case of an individual whose service has been engaged by the District in the capacity of attorney, physician, engineer, architect, accountant or auditor and the District has determined that the individual is rendering service as an employee and, therefore, may be eligible for credit with a retirement system, the District will submit to the retirement system, in a form prescribed by the Comptroller and certified by the Chief Fiscal Officer of the District, an explanation of the factors that led to the conclusion that the individual is an employee and not an independent contractor or consultant.
Retirement and Social Security Law Sections 11, 34, 311, and 334
2 New York Code of Rules and Regulations (NYCRR) Sections 315.2 and 315.3
PROFESSIONAL SERVICES PROVIDERS
Determination by Employer
The District has the primary responsibility for determining whether an individual is rendering services as an employee or as an independent contractor. When making such a determination the District must consider the factors enumerated in Commissioner’s Regulations Sections 315.2 and 315.3. An individual serving the District as an independent contractor or consultant is not an employee and should not be reported to the New York State and Local Retirement System (NYSLRS).
Charging for Professional Services
A lawyer will not simultaneously be an independent contractor and an employee of the District for the purpose of providing legal services to the District.
A lawyer who is not an employee of the District will not seek to be or be considered, treated or otherwise reported by the District as an employee thereof for purposes of compensation, remuneration, health insurance, pension and all employment-related benefits and emoluments associated therewith [Education Law Section 2051(2)].
Any person who will knowingly:
a) Violate the provisions of Education Law Section 2051(2);
b) Make a false statement of material fact; or
c) Falsify or permit to be falsified any record or records of the retirement system in an attempt to defraud the retirement system as a result of such act for the purpose of obtaining a credit towards pension benefits, or a benefit or payment in excess of $1000 from such retirement system for a professional services provider to which such professional services provider would not be entitled, will be guilty of a Class E felony.
Reports Regarding Lawyers
The District will, on or before the 45th day after the commencement of its fiscal year, file with the State Education Department, the State Comptroller and the Attorney General a report specifying those requirements enumerated in Education Law Section 2053.
Protection Against Fraud
Any person who will knowingly make any false statement, or will falsify or permit to be falsified any record or records of the retirement system in any attempt to defraud the system as a result of such act, will be guilty of a misdemeanor, and will be punishable under the laws of New York State.
Any violation of applicable law that results in a member or beneficiary of the retirement system receiving a benefit or payment in excess of $1000 more than he or she would have been entitled to will be a class E felony. Any violation of applicable law that results in a member or beneficiary of the retirement system receiving a benefit or payment in excess of $3000 more than he or she would have been entitled to will be a class D felony.
Education Law Sections 525, 2050-2054
Retirement and Social Security Law Sections 111 and 411
8 New York Code of Rules and Regulations (NYCRR) Sections 315.2 and 315.3
EMPLOYMENT OF RETIRED PERSONS
A retired person may be employed and earn compensation in a position in the District, without any effect on his or her status as retired and without suspension or diminution of his or her retirement allowance subject to the conditions enumerated in Retirement and Social Security Law Section 211(1). However, there will be no earning limitations on or after the calendar year in which any retired person attains age 65.
No retired person may be employed in the District except upon approval of the Civil Service Commission or the Commissioner of Education unless otherwise authorized in accordance with law, as discussed below.
Two sections of the Retirement and Social Security Law (RSSL Section 211 and 212) affect a retiree’s return to public employment in New York State. If a retiree returns to public employment, he or she may still be able to collect his or her pension depending upon:
a) How much is earned after returning to work; and
b) The retiree’s age.
If a retiree is under age 65, he or she can return to public employment without approval or reduction in retirement benefits as long as his or her calendar year earnings do not exceed $30,000 (the RSSL Section 212 limit). If a retiree’s earnings will be more than the Section 212 limits, the employer must request and receive prior approval from the appropriate agency to hire the retiree under Section 211. This may help avoid a reduction or suspension of the retiree’s pension. (Refer to subheading below for more information regarding RSSL Section 211 and the approval process.)
There is generally no restriction on a retiree’s earnings beginning in the calendar year he or she turns 65, unless returning to public office.
RSSL Section 211 Approval Process
Approval for post-retirement employment of a person under the age of 65 who’s calendar year earnings exceed $30,000 may be granted only on the written request of the District giving detailed reasons related to the standards forth in Section 211; and on a finding of satisfactory evidence by the Civil Service Commission or the Commissioner of Education that the retired person is duly qualified, competent and physically fit for the performance of the duties of the position in which he or she is to be employed and is properly certified where such certification is required.
The District will prepare a detailed recruitment plan to fill such vacancy on a permanent basis when the need arises and will undertake extensive recruitment efforts to fill the vacancy prior to making a determination that there are no available non-retired persons qualified to perform the duties of such position.
Approvals to hire retired individuals may be granted for periods not exceeding two years each, provided that a person may not return to work in the same or similar position for a period of one year following retirement. However, in accordance with RSSL Section 212, a retiree may return to work in the same or similar position within the same year following retirement if his or her earnings are under $30,000 or if he or she receives a Section 212 waiver, or other conditions exist as enumerated in law.
Reporting Requirements and Disclosure
a) The District will report all money earned by a retired person in its employ in excess of the earnings limitation outlined in Retirement and Social Security Law Section 212 to the retirement system administered by the State or any of its political subdivisions from which the retired person is collecting his or her retirement allowance.
b) The District, when employing a retired person who is eligible to collect or is already collecting a retirement allowance from a retirement system administered by the State or any of its political subdivisions, will report on an annual basis to the retirement system paying such retirement allowance and to the State Comptroller. This report will consist of the re-employed retiree’s name, date of birth, place of employment, current position, and all earnings.
Any request for approval of the employment of a retired person, including the reasons stated, and the findings and determination of such request will be a public record open for inspection in the Office of the Civil Service Commission, the Commissioner of Education, or the Board making such findings and determination as specified in Retirement and Social Security Law Section 211.
Education Law Section 525
Retirement and Social Security Law Sections 111, 211, 212, 217, and 411