October 1997 Legal Update

LEGAL UPDATE
By: Louis D. Stober, Jr., Esq.
CSEA REGIONAL ATTORNEY

STOBER DEFEATS NCMC SICK LEAVE ABUSE CHARGES

In a recent decision interpreting the County's ability to discipline employee's for sick leave abuse, guidelines have been issued for all County employees to remember. The case was handled by David Sullivan of my office and involved a ten day suspension without pay for alleged sick leave abuse.

The County felt justified in suspending the employee because he had taken 11 sick days in six months and had a "pattern" of using sick leave in conjunction with days off. Our counter-argument was:

1. The employee was too ill to report to work each day charged;
2. almost all the days charged which were next to days off were quarter days taken in the mornings. If the employee was link sick days with regular days off, he would take the entire day off, not just one quarter of a day;
3. the County did not adhere to Section 42-8.2 of the CBA which allows the County, after 7 sick days, to require an employee to bring a doctor's note certifying to the nature of the employee's illness, that the employee may return to work and perform his/her normal duties, etc. If no doctor was in attendance, the employee may be required to state in writing the nature of the employee's sickness and the department head may require the employee to submit to a medical examination by a doctor designated by the department. In this case, the County conceded it never asked for a note nor did it order the employee to be examined.

In sustaining the grievance and ordering the County to make the employee whole, the Arbitrator held:

"An employee is expected to report to work on a regular basis. He or she must maintain an acceptable attendance record … I have reviewed the testimony … and the records for the period … they indicate that [the employee] was examined at the NCMC [for three dates] … In addition, a doctor's certificate … states that [the employee] was unable to work [for two additional dates] … I am persuaded that they constitute valid sick leave, and are therefore, not to be considered an abuse of sick leave ...

I agree with the Union in its scenario that if an employee was to utilize sick leave in conjunction with a day off, he or she would not report late that day. Instead, the employee would take the entire day off. The County's conclusion that these dates were an abuse of sick leave is not supported by any evidence.

In addition, if the County did believe that [the employee] was utilizing excess sick leave, it has several options under Section 42-8.2 of the Collective Bargaining Agreement … There is no obligation upon the County to request this certification. However, if the County is questioning the validity of an employee's sick leave absences, then this language provided the County with various opportunities whereby the employee is required to then adequately support his or her absences. The County cannot ignore Section 42-8.2 and then suspend an employee for abuse of sick leave." (emphasis added).

Remember, if you are accused of sick leave abuse, your best defense is medical documentation substantiating your illnesses. However, the County must also meet its obligations under Section 42-8.2 to require documentation or an examination if it is questioning your sick leave use. You have the right to challenge any discipline for sick leave abuse if you believe it was based on unfounded allegations against you.

Attorney Louis D. Stober, Jr., proudly serves Long Island, NY, and the Hudson Valley area including Brooklyn, Bronx, Manhattan, Queens, Staten Island, Albany County, Columbia County, Dutchess County, Greene County, Kings County, Nassau County, Orange County, Putnam County, Richmond County, Rensselaer County, Rockland County, Suffolk County, Ulster County, Westchester County, and the cities of Albany. Carmel, Catskill, Garden City, Glen Cove, Goshen, Hempstead, Hudson, Kingston, Long Beach, Mineola, Newburgh, New City, New York City, Oyster Bay, Poughkeepsie, Riverhead, Troy, White Plains and Yonkers.