By: Sandra L. Jacques, Esq., LL.M. – Assistant Director of Legal Education – sjacques@njpsa.org
Throughout this School Year, Districts have had to figure out how to comply with the benefits that the 2023 Sick Leave law, P.L. 2023, c. 95, statutorily grants to employees, while simultaneously determining how to maintain adequately staffed buildings and fulfilling the needs of students. The law identifies 8 specific reasons that an employee may use sick leave, going well beyond the employee’s own illness to include care for a family member, addressing issues of domestic violence and to attend a child’s school event.
Open questions remain regarding the implementation of the revised law, including questions regarding items that are managerial prerogative versus those that must be negotiated. Under traditional principles of statutory construction, where a statute provides that an employer may act, and does not specify a requirement to negotiate, the item is considered to be one of managerial prerogative. By contrast, the procedures around how an employee complies with various notice and documentation requirements may be negotiable. Finally, where statutes are enacted in order to expand employee rights, they are generally liberally construed in order to achieve the desired expansion of rights.
There is common ground to be found between a District and the Collective Bargaining Units. While the CBU’s represent the staff that wish to enjoy the benefits of the 2023 Sick Leave Law, the CBU also represents the disgruntled staff that are “left behind” and required to cover for and/or do the work for their absentee colleagues. Although the law does provide a number of mechanisms with which a District can limit the use of Sick Leave, such limitations require that the District has adopted policies in order to impose those limitations.
Even where items are managerial prerogative, the district is required to provide clear notice to employees of the employer’s expectations and procedures. Adopting board policies and procedures and providing clear notice to employees are essential elements in order to reduce the potential for legal challenges down the road.
As an initial matter, the law is clearly intended to apply to humans only! There have been several instances where staff have attempted to use their sick days for veterinary appointments, since their pets are “like family.”
Districts should take steps to clarify expectations around a number of items in the revised sick leave law. As noted above, at least the procedures to be followed should be mutually agreed upon by the employer and employees.
Items that should be clarified include the following:
- How will you verify that someone was “like a family member” or a “blood relative” to a staff member when they want to use a Sick Day for a person other than themselves or immediate family? You certainly cannot ask for a DNA test… What, if any, standard will your District apply in these situations?
- How are Districts affected where the staff were previously granted entitlement to “Bereavement Leave” prior to the enactment of the 2023 Sick Leave Law? Can a staff member be required to use the “negotiated Bereavement Leave” before using a Sick Day for Bereavement purposes? Absent a negotiated agreement that states otherwise, the presumption will be that the employee can choose to use either sick leave or existing bereavement leave first.
- Are there limitations as to how “Sick/Bereavement Leave” can be utilized? It is not uncommon for funeral / memorial plans to span over several weeks for reasons such as weather conditions, illness, or allowances for long-distance relatives to travel. However, what about a situation where a staff member has someone die in September, but the “Bereavement Time Off” is not utilized until the week before the December Winter Break, to take a trip to Hawaii (or some other warm location), because that is where and when the “Family Memorial Service” is being held? “Time limitations” for the use of Sick Time for Bereavement Purposes should be clarified.
- Will your District create/ modify an existing form to be used when a staff member seeks to use a Sick Day? It would be a best practice to require the staff member to identify in writing for whom the Sick Day is being used (self, family, “like a …”, or “blood relative”). It is likely that from year to year, the District will want to know how often an employee utilized Sick Days for someone other than themselves.
- Will the District require advance notice of anticipated sick days by the employee? The 2023 Sick Leave Law states that “If an employee’s need to use sick leave as defined pursuant to 42 N.J.S.18A:30-1 is foreseeable, a board of education may require advance notice (emphasis added), not to exceed seven calendar days prior to the date the leave is to begin, of the intention to use the leave and its expected duration.” Such an “advance notice requirement” should be clarified in Board Approved District Policy.
- Will the District implement new “Sick Day Monitoring” policies? One such suggested policy is providing a “Sick Day Use” Report Card to EVERY staff member midyear, which may include information such as the number of days already used/accepted, the given reasons for those days and the remaining available days through the rest of the school year.
- For the majority of your staff, such a “report card” will simply be a friendly reminder as to where they stand with their Sick Time. For the excessively absent staff members (including those that seem to randomly take one Sick Day off every few weeks…), it demonstrates that the District is aware of what has happened to that point, and it is monitoring the behavior. Furthermore, such an unbiased, systematic midyear report listing Sick Leave status could be cited as the first level of notice about an employee’s pattern of absences. For employees that exceed identified thresholds for absences in a given time period (e.g., that school year or over multiple years), a second level of notice could be provided documenting the adverse impact of the absences. This could also assist a District in proving that “Progressive Discipline/Notice” was provided to a staff member when discipline is imposed and/or termination is sought for excessive absenteeism.
- Identify the types of situations that constitute a “child’s school-related conference, meeting, function or other event requested or required by a school administrator, teacher, or other professional staff member responsible for the child’s education, or to attend a meeting regarding care provided to the child in connection with the child’s health conditions or disability.”
- Does this provision apply to situations that only affect the staff member’s child in an individual capacity, such as a picking up a sick child or attending an IEP Conference? Note that this provision is likely to be construed broadly in any legal challenge to include larger school functions,” but a district may wish to clarify that it excludes certain “Black Out Days” such as Halloween Parties/Parades, or the first day of school.
- The employee is required to be “reasonable” in their use of Sick Days. The law states that “… the employee shall make a reasonable effort to schedule the use of sick leave in a manner that does not unduly disrupt the operations of the board of education.” You need to have this in writing in your District policy, along with your definition of “reasonable”.
- It would be a best practice to have this topic listed on an Agenda for a meeting with staff once the terms have been added to your District’s Board Approved policy. The District could also include a description of a “reasonable use of sick leave” on the Sick Leave Form itself. If you provide an example of an “unreasonable use of Sick Leave”, take care to use language such as: “An example of an unreasonable use of sick leave includes, but is not limited to, whatever your example is…”
- Clarifying when and how the District can ask an employee for information / medical documentation for the use of a Sick Day. The 2023 Sick Leave Law states: “In case of sick leave claimed for three or more consecutive days, a BOE may require reasonable documentation that the leave is being taken for a purpose permitted pursuant to subsection a. of N.J.S.18A:30-1.” However, the law also states “In case of sick leave claimed due to personal illness or injury, a board of education may require a physician’s certificate to be filed with the secretary of the board of education in order to obtain sick leave.” While the law appears to allow districts to require medical documentation of any illness, open questions remain as to whether such notice can be required for 1 day of illness or if the district must wait until 3 or more consecutive days have been used prior to inquiring for the need to take the time off and/or provide documentation?
- What happens in situations where a teacher unexpectedly uses a Sick Day on Monday, a Personal Day on Tuesday, a Sick Day on Wednesday, a Personal Day on Thursday, and another Sick Day on Friday – all in the same week? It is important that the District remember that the 2023 Sick Leave law is not the only law that the District is required to satisfy… In this example situation, as well as those where the teacher was absent less than 5 days in a single week, the District:
- Has an obligation to the students to determine whether the “time off”, regardless of the particular “type” of day utilized, is going to continue, thereby requiring the need for a long-term substitute and/or other potential accommodations for the students;
- Must ensure that the class does not “fall behind” and/or has the ability to make-up whatever was missed due to the teacher’s unexpected week of absence;
- Must ensure that the needs and legal requirements contained within IEP’s and/or 504 Plans are adhered to, even in the teacher’s absence;
- Should document within that teacher’s evaluations any negative effects that the teacher’s absence may have caused to the students;
- Should inquire as to whether the Teacher needs assistance from the District to remedy the “need” to take so much time off from work, and document the teacher’s response(s). Under the Americans with Disabilities Act (ADA), an employer (here, the District) that knows or reasonably should have known of the need for a reasonable accommodation for an employee is required to act accordingly.
- Taking an unexpected week off from work could be a sign that something in the teacher’s life could interrupt their ability to function as a teacher.
- Such accommodations could also include determining whether a leave of absence (paid or unpaid) is warranted, whether mental health services need to be provided, or determining any other remedy appropriate to the situation;
- Should document the difficulties that the absence(s) caused for the District. In addition to those noted above, these could include the monetary cost of substitutes, the unhappiness of fellow staff that had to rearrange / sacrifice their schedules to accommodate the other teacher’s absence(s), and/or the District’s difficulty / inability of having the same person serve as a substitute teacher for the class for all 5 days.
- Understanding that, even with all of the new statutorily granted “legitimate” reasons to use a Sick Day under the 2023 Law, staff can still be disciplined / terminated for Excessive Absenteeism and/or Incapacity to perform their job.
As of the date of this article, we do not have caselaw to clarify and provide guidance regarding all of the gray areas noted in this analysis. Please note that although I am an attorney, nothing contained within this article constitutes legal advice. It is important that Districts consult and work with their School Board Attorneys to develop policies and negotiate language where needed that is specific to and serves their individual Districts, while also being reasonable and as fair as possible to the Students, the District and the Staff.