The Massachusetts Division of Labor Relations has struck down the sick-time verification policy of the Dracut Police Department, finding that the policy violated several provisions of the applicable collective bargaining agreement. Similar to recent federal court decisions striking down overly intrusive sick-time verification policies, Dracut’s policy was also found to be in violation of the Americans with Disabilities Act (ADA). An arbitrator appointed by the State ordered the Town to cease and desist its illegal policy.
According to the Arbitrator’s decision, the policy at issue was implemented by the Deputy Police Chief. The Deputy Chief required all officers requesting a sick day to first provide to him their symptoms and the nature of their illness. The Deputy Chief would then decide on a case-by-case basis whether the reason provided justified granting of the sick day. This particular case involved a female officer’s use of three days of sick time. The officer was one of only a few females employed by the Department. The collective bargaining agreement between the Union and the Town contained a negotiated sick-time verification policy – to be used when officers are suspected of abusing sick time, or where officers take four or more consecutive days of sick time. The officer involved did not take four sick days, and the Town never alleged that she abused sick time. Thus, the Union argued, the collective bargaining agreement prohibited the Town from requesting verification.
The female officer, citing concerns for her personal medical privacy, refused to provide the information requested by the Deputy Chief. The Deputy Chief responded by sending her a letter questioning her fitness for duty, stating that due to her failure to tell him her symptoms, he concluded she might pose a safety risk to the citizens of the Town. He then ordered the officer to undergo a battery of tests, including medical and fitness for duty testing, and even ordered what he termed to be “random” drug screening. Significant in the Arbitrator’s eventual decision was the fact that despite the Deputy Chief’s questioning of the officer’s fitness for duty, he continued to order the officer to work during all of the testing, including multiple double shifts.
The Union argued that “at its core, the case is really about retaliation, power and good-faith dealing.” In support of its retaliation charge, the Union maintained that if the Department had any real concern about the officer’s fitness, it would have ordered her not to report for duty until it assured itself that she would not pose a danger to herself or others. According to the Union, “where there is no good-faith belief that the grievant was unfit, ordering her to undergo fitness for duty evaluations, simply because she asserted her contractual rights, is a breach of good faith and fair dealing, and should not be condoned.” Finally, the Union argued that requiring a general diagnosis as a condition of granting sick time, in such circumstances, violated the ADA.
The Town maintained that its actions were consistent with the business necessity justification provisions of the ADA. Furthermore, it argued that its actions were part of a longstanding practice employed by the Police Department. Finally, it maintained that it needed the information as a “reasonable and common mechanism to monitor sick leave usage, to verify that payment for an unworked day is warranted.”
The Division of Labor Relations rejected all of the Town’s arguments, finding that the Town inappropriately used the collective bargaining agreement’s drug testing and fitness for duty testing in a disciplinary manner. Noting that the officer was ordered to work eight full shifts during fitness testing, the Arbitrator held that there was no legitimate reason to order the officer to undergo such testing, and that the tests were only ordered because of the officer’s failure to comply with the Deputy Chief’s inappropriate request for medical information. Finally, citing Pennsylvania State Troopers Association v. Pennsylvania State Police Department, 621 F. Supp. 2d 246 (M.D. Pa. 2008), the Arbitrator held that the sick-time policy violated the provisions of the ADA. Rejecting the Town’s defense of its actions, the decision details that the Town’s policy failed to satisfy the ADA’s business necessity provisions because the policy in no way measured fitness for duty, particularly here where the officer was clearly fit for duty. “The invalidity of the policy is bolstered by its appearance as an inappropriate absentee control policy.”
The New England Police Benevolent Association was represented by Attorney Gary G. Nolan of Nolan Perroni Harrington, LLP, in Lowell, Massachusetts, who kindly provided a copy of the decision to LRIS.
This article appears in the January 2010 issue
