Injury Leave Does Not Extend Firefighter’s Probationary Period

The probationary periods of newly-hired employees are occasionally interrupted by injury or sick leave, used either for job-related or off-the-job injuries and illnesses. In the absence of specific language dealing with the issue, can an employer extend probationary periods by the amount of time missed due to leave? The federal Seventh Circuit Court of Appeals answered the question “no,” at least insofar as Illinois law is concerned.

The case involved the Oakbrook Terrace Fire Protection District, which hired Brian Kodish as a full-time firefighter/paramedic on June 2, 2003. After three months of work, Kodish received a mediocre written evaluation. The evaluator warned Kodish to focus on his job activities and put aside “administrative functions” for later in the evening. The evaluation noted that these activities were “causing a disturbance within the shift.” This evaluation was also spotted with references to his lack of internal motivation and his need to improve his skills. On his next evaluation, his grades dropped a bit, and he received a “good” grade only for personal appearance; in all other areas he rated only “fair.” The third review, written just one month later, on December 11, 2003, revisited these concerns and concluded that Kodish’s “continued employment with the District is being questioned.”

Later in December, Kodish injured his knee in a work-related incident and when that injury required surgery, he went on medical leave from March 21 to July 24, 2004 – a period of approximately four months. One month before going on leave, Kodish received a formal reprimand for failing to properly shut down a medical vehicle. Three days before going on leave, Kodish received his fourth and final evaluation. In it his grade for quality of work went from “fair” to “good,” but the comment noted he lacked initiative and would “only do what he is told and no more.” The review noted that Kodish was outspoken, and that he needed “to learn how to respect his co-workers and supervisors.”

Several weeks into Kodish’s leave, on May 5, 2004, the District sent him a letter notifying him that it was extending his probationary period pursuant to the District’s Wage and Benefit Policy. According to the letter, the District opted to extend his probationary period “until such time as a complete twelve (12)-month probationary period, excluding the period of absence, has been successfully completed.” On August 11, the District’s Board members discussed Kodish in a closed session meeting. The tenor of the discussion was that Kodish was capable of performing the work of a firefighter, but that his attitude, opinions, and interpersonal conflicts were disruptive to the Fire Department. One day later, on August 12, 2004, the Fire Chief handed Kodish a letter of resignation and informed him that he could resign or be terminated immediately. Kodish signed the resignation letter. In short order, he sued the District, alleging that the time spent on injury leave did not extend his probationary period, that he had a property right to his job, and that the District’s termination of him violated his due process rights.

The Court found much to like about the District’s argument that Kodish actually had to perform firefighting duties for 12 months in order to complete his probationary period: “The ‘performs the job’ interpretation has much to commend it. After all, the purpose of the trial period is to judge firefighters on their mettle in the line of duty rather than simply on a series of examinations prior to employment. Because of the very nature of the duties of firemen and policemen, in the performance of which the highest courage in dangerous situations is a prime requisite, we think the Legislature must have intended that the ability to pass a written and physical examination should not be the final test. It is only through probationary appointments for a reasonable period, during which firemen and policemen may be observed in the actual performance of their duties in situations of danger, that their real worth and mettle may be tested.”

The problem was, the Court observed, that Kodish made policy arguments that were at least as convincing as the District’s. As recounted by the Court: “But there are ample reasons for the alternative rule as well – that is, a rule that grants a property right in employment to anyone who was hired into the position more than 12 months before. Perhaps the legislature did not want to grapple with the messy details of figuring out what it means to work for one year. Suppose a firefighter misses two weeks of work, or two days. Has she worked the full year? Because many firefighters work 24-hour shifts followed by 48 hours of off-duty time, if a firefighter misses two shifts, has she missed six days of a typical laborer’s work? Because firefighting poses frequent and grave dangers, should a firefighter who is injured on the job be punished for the injury by having the probationary period extended?”

In the end, the Court focused on the state statute defining probationary periods, a statute which ends probationary periods after an individual has “held the position” for one year. The Court reasoned: “The Legislature certainly must have recognized the strong possibility that an illness or injury might prevent a firefighter from performing firefighting duties for some time during the probationary period. The Legislature surely could have written the Act to apply to those who had performed the duties or functions of a firefighter for one year. It chose not to do so and instead chose to apply the entitlement to those who ‘held that position for a year.’ We must read the plain language of the Act without imposing additional conditions not required therein. At all relevant times, whether he was performing his duties or not, Kodish held his position. He maintained his badge, his uniform, his personal equipment, his employee manuals, and communicated regularly with his employer. Consequently, the statute granted Kodish a property interest in continued employment and he could not be discharged without just cause.”

Kodish v. Oakbrook Terrace Fire Protection Dist., 604 F.3d 490 (7th Cir. 2010).

This article appears in the December 2010 issue