July 2000 Legal Update

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

SICK LEAVE OR SUSPENSION?

Recently, I won an arbitration that addressed the issue of whether someone who is improperly suspended can be charged sick leave for the time s/he was suspended. In this particular case, the employee was suspended without pay for alleged misconduct. While on suspension, the employee had minor surgery. When the suspension was revoked and the disciplinary charges dropped, the County claimed that they could charge the employee sick leave because he couldn't possibly been able to come to work during the time after his surgery.

However, the employee produced a doctor's note stating he was only unable to work on a date well after the suspension. Since the burden of proof was on the County to prove the employee could not work during his suspension and they could not prove the employee was incapable of working, the Arbitrator ordered the County to recredit the employee with the sick leave that had been charged for the suspension.

The lesson in this case is that you cannot be charged leave entitlements, especially sick leave, for a suspension that was improperly imposed unless the County can prove that you were incapable of working during the suspension period. Therefore, if you become ill during a suspension, it pays to see a doctor and get documentation to establish affirmatively that you are able to work. In this way, the County will not be able to prove otherwise and will not be able to charge you with sick leave if your suspension is revoked.

Remember, it is always easier to prove your condition if you take steps to prove your ability to work at the time rather than trying to prove it months later. So see your doctor and document your ability to work, otherwise you will lose sick leave even if you prove you never should have been suspended.