Opn. No. ( 1981 )

Alex T. LaBrecque, Esq. Assistant County Attorney, Chemung County

You ask whether an employee of a county may simultaneously receive both disability benefits under the Workers' Compensation Law and sick leave benefits provided by the county or may elect to receive only disability benefits although eligible for sick leave benefits.

A county may elect to provide disability benefits to its employees by voluntarily becoming a covered employer subject to the terms of the Disability Benefits Law (Workers' Compensation Law, § 212). Under that law no employee is entitled to disability benefits for any day of disability for which he is entitled to receive from his employer remuneration or maintenance in an amount equal to or greater than the disability benefits to which he would be entitled (id., § 205[6]). A voluntary contribution or aid made to an employee by an employer is not remuneration or maintenance within the above context (ibid.).

In 1970, subdivision 6 of section 205 was amended to permit simultaneous receipt of both disability benefits and "supplementary benefits" provided under the provisions of a collective bargaining agreement (L 1970, ch 288). The purpose of the amendment was to encourage employers and employees to provide through collective bargaining agreements for payment of disability benefits to supplement the benefits received under the Disability Benefits Law (memorandum in support of Assembly 4129). The sponsor of the bill noted that disability benefits are small, making it difficult for disabled employees to support their families (ibid.). The present law includes this language permitting an employee to receive both "supplementary benefits" under the provisions of a collective bargaining agreement and benefits under the Disability Benefits Law (id., § 205 [6]).

There is no entitlement to disability benefits for any day for which an employee is entitled to receive from his employer an amount equal to or greater than the benefits payable under the Disability Benefits Law (ibid.). As distinguished from a voluntary contribution and a supplementary benefit, we believe that the normal provisions under which public employees accrue sick leave are programs that entitle the employee to remuneration or maintenance. If an employer has a sick leave plan that entitles an employee to an amount equal to or greater than payable disability benefits, the employee would be ineligible to receive benefits under the Disability Benefits Law during the period of his entitlement to sick leave payments. The test is whether the sick leave payments are voluntary or are made pursuant to or in lieu of some obligation previously agreed to by the employer (Matter of Cleveland v American Mgt.Assn., 45 A.D.2d 506 [3d Dept, 1974]). Where such an entitlement to sick leave payments exists, the law by its terms does not permit an employee to elect to receive only disability payments under the Disability Benefits Law. The fact of his entitlement to sick leave payments equal to or greater than disability benefits payable under the Disability Benefits Law would disqualify him from receiving the disability benefits. Of course, if under the terms of a collective bargaining agreement sick leave is to "supplement" disability benefits, no such disqualification would occur (id., § 205 [6]).

We note that if sick leave payments are voluntary rather than obligatory and made in like manner as wages during a period of disability, the employer will be entitled to reimbursement from disability benefits due or to become due on account of the employee's disability if a timely claim for reimbursement is filed (id., § 237; Matter of Lynch v Boardof Education, 1 A.D.2d 362 [3d Dept, 1956] affd 3 N.Y.2d 871 [1957];Matter of Cleveland v American Mgt. Assn., supra). The amount of reimbursement to the employer is limited to the disability benefits payable for the period (Matter of Lynch v Board of Education, supra).

We conclude that entitlement of an employee to sick leave benefits in an amount equal to or greater than disability benefits payable under the Disability Benefits Law disqualifies him from receiving disability benefits during the period of such entitlement.