Chapter 123:1-30 Disability Separations - Reinstatement

123:1-30-01 Involuntary disability separation.

(A) An employee who is unable to perform the essential job duties of the position due to a disabling illness, injury or condition may be involuntarily disability separated. An involuntary disability separation occurs when an appointing authority has received substantial credible medical evidence of the employee's disability and determines that the employee is incapable of performing the essential job duties of the employee's assigned position due to the disabling illness, injury or condition.

(B) An appointing authority shall request that an employee submit to a medical or psychological examination, conducted in accordance with rule 123:1-30-03 of the Administrative Code, prior to the involuntary disability separating the employee unless:

(1) The employee is hospitalized at the time such action is taken,

(2) The employee has exhausted his or her disability leave benefits, or

(3) Substantial credible medical evidence already exists that documents the employee's inability to perform the essential job duties.

(C) Pre-separation hearing. An appointing authority shall institute a hearing prior to involuntarily disability separating an employee. The employee shall be provided written notice at least seventy-two hours in advance of the hearing. If the employee does not waive the right to the hearing, then at the hearing the employee has the right to examine the appointing authority's evidence of disability, to rebut that evidence, and to present testimony and evidence on the employee's own behalf.

(D) If the appointing authority determines, after weighing the testimony presented and evidence admitted at the pre-separation hearing, that the employee is capable of performing his or her essential job duties, then the involuntary disability process shall cease and the employee shall be considered fit to perform his or her essential job duties. If the appointing authority determines, after weighing the testimony presented and the evidence admitted at the pre-separation hearing, that the employee is unable to perform his or her essential job duties, then the appointing authority shall issue an involuntary disability separation order.

(E) Right to reinstatement. At the time the appointing authority provides the involuntary separation order to the employee, the appointing authority shall notify the employee of the required procedures to apply for reinstatement. The effective date of separation, for purposes of reinstatement, shall be based on the date in which the employee was no longer performing in active work status due to the disabling illness, injury or condition. An employee who has been involuntarily disability separated is not prohibited from applying for disability leave benefits. The total time of absence due to the disabling illness, injury or condition shall not exceed two years from the date of separation for purposes of reinstatement rights under this chapter. If an employee attempts to return to work but fails to perform the essential job duties for six consecutive months, the employee's effective date of separation does not change except as provided in paragraph (F) of rule 123:1-33-08 of the Administrative Code.

(F) An employee so separated shall have the right to appeal in writing to the personnel board of review within ten days following the date the order is served.

(G) For purposes of this rule only, "active work status" does not include those hours worked during a transitional work program authorized by paragraph (B) of rule 123:1-33-07 of the Administrative Code on in a temporary part-time position authorized by paragraph (A) of rule 123:1-33-07 of the Administrative Code.

R.C. 119.032 review dates: 05/15/2013 and 05/15/2018
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.32 , 124.385
Prior Effective Dates: 3/17/82, 9/5/93, 1/23/94, 11/10/96, 2/13/00, 10/29/06, 7/1/07

123:1-30-02 Voluntary disability separation.

(A) An employee who is unable to perform the essential job duties of the position due to a disabling illness, injury or condition may request a voluntary disability separation. A voluntary disability separation occurs when an employee does not dispute his or her inability to perform the essential job duties of the position due to a disabling illness, injury or condition.

(B) Appointing authorities may grant an employee's request for voluntary disability separation or may require the employee to submit to a medical or psychological examination pursuant to rule 123:1-30-03 of the Administrative Code. If the examination supports the employee's request, the appointing authority shall grant the employee's request for voluntary disability separation. If the medical examination does not support the employee's request, the appointing authority shall not approve the employee's request for voluntary disability separation.

(C) Pre-separation hearing. An employee who is granted a voluntary disability separation waives the right to a pre-separation hearing and to an appeal of the decision to approve the employee's request.

(D) Right to reinstatement. An employee that is granted a voluntary disability separation shall retain the right to be reinstated to his or her position for two years from the date that the employee is no longer in active work status due to a disabling illness, injury or condition. An employee may submit a written request for reinstatement from a voluntary disability separation in accordance with the procedure established in rule 123:1-30-04 of the Administrative Code.

(E) For purposes of this rule only, "active work status" does not include those hours worked during a transitional work program authorized by paragraph (B) of rule 123:1-33-07 of the Administrative Code or in a temporary part-time position authorized by paragraph (A) of rule 123:1-33-07 of the Administrative Code.

R.C. 119.032 review dates: 05/15/2013 and 05/15/2018
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.32
Prior Effective Dates: 11/10/96, 10/29/06, 7/1/07

123:1-30-03 Medical and psychological examinations.

(A) An appointing authority may require that an employee submit to medical or psychological examinations for purposes of disability separation or a reinstatement from disability separation. The appointing authority shall select one or more licensed practitioners to conduct the examinations.

(B) Prior to any examination, the appointing authority shall supply the examining practitioner with facts relating to the perceived disabling illness, injury or condition. The appointing authority shall also supply physical and mental requirements of the employee's position; duty statements; job classification specifications; and position descriptions. Both the appointing authority and the employee shall receive the results of any examination and related documents subject to division (C)(1) of section 1347.08 of the Revised Code.

(C) Except as provided in paragraph (D) of this rule, the appointing authority shall pay the cost of the examinations.

(D) Employee's failure to appear for examination. An employee's refusal to submit to an examination, the unexcused failure to appear for an examination, or the refusal to release the results of the examination amounts to insubordination, punishable by the imposition of discipline up to and including removal. An employee will be responsible for the costs associated with an unexcused failure to appear at a scheduled examination.

Replaces: 123:1-33-01

R.C. 119.032 review dates: 05/15/2013 and 05/15/2018
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.32 , 124.385
Prior Effective Dates: 9/5/93, 1/23/94, 11/10/96, 4/5/99, 2/13/00, 10/29/06

123:1-30-04 Right to reinstatement; rights of appeal.

(A) Timeline for reinstatement. An employee may make a written request to the appointing authority for reinstatement from a disability separation. An employee may not make a first request for reinstatement until three months from the date the employee was no longer in active work status. The appointing authority shall notify the employee of its decision to approve or deny the reinstatement request no later than thirty days after it receives the employee's written request. The employee shall not make subsequent requests for reinstatement more than once every three months from the date the employee is notified of a reinstatement denial. An employee is not eligible for reinstatement if the request occurs later than two years from the date that the employee was no longer in active work status due to the disabling illness, injury, or condition.

(B) Requirements for reinstatement. The employee's request for reinstatement shall be accompanied by substantial, credible medical evidence that the employee is once again capable of performing the employee's essential job duties. Upon receiving this evidence, the appointing authority shall either reinstate the employee or require the employee to submit to a medical or psychological examination in accordance with rule 123:1-30-03 of the Administrative Code.

(C) Initial determination. The appointing authority will review the substantial credible medical evidence submitted by the employee or the results of a medical or psychological examination conducted in accordance with rule 123:1-30-03 of the Administrative Code and make an initial determination of whether or not the employee is capable of performing the essential duties of the employee's position. If the appointing authority initially determines that the employee is once again capable of performing the essential job duties, the appointing authority shall reinstate the employee. If the appointing authority initially determines that the employee remains incapable of performing the essential job duties, the appointing authority shall institute a pre-reinstatement hearing.

(D) Pre-reinstatement hearing. An employee shall be provided written notice at least seventy-two hours in advance of the pre-reinstatement hearing. If the employee does not waive the right to a hearing, then at the hearing the employee has a right to examine the appointing authority's evidence of continuing disability, to rebut that evidence, and to present testimony and evidence on the employee's own behalf.

(E) Determination. The appointing authority will weigh the testimony presented and evidence admitted at the pre-reinstatement hearing to determine whether the employee is able to perform the essential job duties of the employee's assigned position. If the appointing authority finds the employee capable of performing essential duties, then the appointing authority shall reinstate the employee. If the appointing authority finds the employee incapable of performing essential duties, then the appointing authority shall not reinstate the employee.

(F) If the appointing authority determines that an employee, who has been disability separated, has committed an act that is inconsistent with the employee's disabling illness, injury or condition, then that act may be considered by the appointing authority when determining an employee's eligibility for reinstatement.

(G) Once an appointing authority determines that the employee is to be reinstated, then the employee has a right to be assigned to a position in the classification the employee held at the time of disability separation. If the classification the employee held at the time of disability separation no longer exists or is no longer utilized by the appointing authority, then the employee shall be placed in a similar classification. If no similar classification exists, or the employee no longer meets the minimum qualifications, the employee may be laid off in accordance with Chapter 123:1-41 of the Administrative Code and sections 124.321 to 124.327 of the Revised Code or in accordance with an applicable collective bargaining agreement executed in accordance with Chapter 4117. of the Revised Code.

(H) If the employee has been granted disability benefits by a state retirement system, the requirements of this rule shall apply for the length of time that the applicable state retirement system requires the employee to be considered for reemployment, except that a licensed practitioner shall be appointed by the public employees retirement board and application for reinstatement shall not be filed after the date of service eligibility retirement. Employers shall restore an employee found to be physically and mentally capable of resuming service pursuant to the statutes and rules of the applicable state retirement system, but may request the employee to submit to a medical or psychological examination, conducted in accordance with rule 123:1-30-03 of the Administrative Code, prior to such restoration.

(I) An employee refused reinstatement as provided in paragraph (E) of this rule shall be notified in writing of the refusal to reinstate and of the right to appeal in writing to the personnel board of review within thirty days of receiving notice of that refusal to reinstate.

(J) An employee who fails to apply for reinstatement within two years from the date that the employee was no longer in active work status due to the disabling illness, injury, or condition shall be deemed permanently separated from service.

(K) For purposes of this rule only, "active work status' does not include those hours worked during a transitional work program authorized by paragraph (B) of rule 123:1-33-07 of the Administrative Code or in a temporary part-time position authorized by paragraph (A) of rule 123:1-33-07 of the Administrative Code.

R.C. 119.032 review dates: 05/15/2013 and 05/15/2018
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.32 , 124.385
Prior Effective Dates: 9/5/93, 1/23/94, 2/19/95, 11/10/96, 4/5/99, 10/29/06, 7/1/07, 4/7/13

123:1-30-05 Disclosure of medical reports.

Disclosure of any information or related documents, provided by or prepared by an examining physician, psychiatrist, psychologist or other licensed practitioner, is subject to division (C)(1) of section 1347.08 of the Revised Code.

Replaces: 123:1-33-05

R.C. 119.032 review dates: 05/15/2013 and 05/15/2018
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.32 , 124.385
Prior Effective Dates: 9/5/93, 10/29/06

123:1-30-06 Leave benefits for an employee given a disability separation.

Any employee who is given a disability separation under the provisions of rule 123:1-30-01 or rule 123:1-30-02 of the Administrative Code and who is eligible to receive disability leave benefits under the provisions of Chapter 123:1-33 of the Administrative Code may apply for disability leave benefits within twenty calendar days after the date the employee is given a disability separation. The approval of a claim for disability leave benefits shall be governed by the provisions of Chapter 123:1-33 of the Administrative Code.

An employee who is given a disability separation pursuant to rule 123:1-30-01 or rule 123:1-30-02 of the Administrative Code shall cease to receive benefits pursuant to section 124.381 of the Revised Code and rule 123:1-33-17 of the Administrative Code.

R.C. 119.032 review dates: 05/15/2013 and 05/15/2018
Promulgated Under: 119.03
Statutory Authority: 124.09
Rule Amplifies: 124.385
Prior Effective Dates: 7/29/82, 2/4/96, 11/10/96, 6/18/00, 10/29/06, 7/1/09 (Emer.), 9/27/09, 4/7/13