November 1997 Legal Update

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

SICK LEAVE AS GROUNDS FOR DISCIPLINE?

This month we will look at what the New York Courts have said about an employee's use of sick leave as grounds for discipline.

In a case I handled on this subject, Auer v. Village of Westbury, 202 A.D.2d 1059, 609 N.Y.S.2d 133, the Court was faced with the situation of an employee who had been suspended for 30 days for using up his sick leave entitlements. The Supreme Court, Appellate Division, held that the fact that the employee used all his available sick days under the collective bargaining agreement did not alone establish that he was abusing his sick leave and, thus, did not warrant a finding of misconduct. The Court nullified the penalty and finding of guilt and ordered the employer to repay the employee for the entire period he was suspended.

Just as in the Nassau Local 830 Collective Bargaining Agreement, the Westbury collective bargaining agreement entitled an employee to accumulate one half sick day per pay period (one sick day per month). While the employee had used one sick day a month every month (and thus had no time left on the books) the Court held that the fact that the employee "used all of his sick days does not, ipso facto, establish that he was abusing his sick leave. Petitioner testified that on each occasion when he called in sick … he was actually sick. Respondent introduced no evidence that petitioner was not in fact sick on any of those days. Because respondent's determination is not supported by substantial evidence, it must be annulled (see, Matter of Drayton v. Hasl, 121 A.D.2d 631, 632, 503 N.Y.S.2d 869)."

The Court has thus put employers on notice that if they wish to discipline an employee for using their sick leave, they cannot merely rely on the fact the employee used all of his/her sick leave. The employer must show that the employee was not sick on the days in question or show that the employee did not follow the proper procedures for calling in sick.

Therefore, if you are disciplined for your use of sick leave make sure you followed all procedures for requesting the leave under Section 42-8 of the CBA. If you did and the County cannot prove you were not sick on the days you are charged then make sure to immediately contact your union representative and file a disciplinary request for review.