Arbitrator Reverses Discipline For Sick Leave Use

After a corrections officer for Woodford County, Illinois used five sick days out of his allotted 12 sick days during the 2010-2011 fiscal year, Jail Superintendent Waterworth issued him a Letter of Caution. Two of the sick days were used consecutively and the remaining three days were used on three separate occasions. The Letter of Caution stated that the officer would need a medical certification for any additional sick leave requests since he had already used five or more sick leave days. The Letter of Caution did not mention a suspicion of sick leave abuse.

The officer’s labor organization, the Fraternal Order of Police (FOP), challenged the Letter of Caution through the arbitration process. An arbitrator upheld the grievance, and reversed the discipline.

The Arbitrator had to first deal with the County’s challenge to the timeliness of the grievance. The Arbitrator disposed of the argument in short order, holding that “the Employer did not raise the issue of timeliness during Step 1 of the grievance procedure. Therefore, this issue was waived by the Employer and is not properly before the Arbitrator.”

Turning to the merits of the grievance, the Arbitrator cited a newly-added contract article that provided the Employer with the option of requesting medical certification after three days or more of absence, “or if sick leave abuse is suspected.” In the Arbitrator’s view, “the parties’ inclusion of this language in the Agreement essentially recognized and confirmed that the Employer could request medical certification regardless of the number of days an employee is absent when sick leave abuse is suspected. Thus, it reasonably appears that what the FOP is objecting to is the routine issuance of Letters of Caution and routine requests for medical certification in any case other than three days of consecutive absence unless the Employer identifies suspected sick leave abuse.

“Pointedly, prior to the hearing, Sheriff Hitchens did not indicate that he suspected the Grievant of sick leave abuse. In fact, Sheriff Hitchens specifically told the Grievant and the FOP that he did not suspect the Grievant of sick leave abuse. Nor does the Letter of Caution issued to the Grievant mention a suspicion of sick leave abuse. Therefore, the Employer’s belated contention that it suspected the Grievant of sick leave abuse is untimely, incredible, and procedurally prejudicial. Not only was the Grievant not given the opportunity to defend himself against any employer-perceived pattern of sick leave abuse during the grievance process, but in addition, the Employer’s belated contention implicitly raises an admission on its part that suspicion of sick leave abuse was required under the Agreement, the Sheriff’s Policy, or both.

“Whether the new contract language pertains to three days of consecutive absence or not, is a red herring in this case. There is no evidence of the Employer issuing Letters of Caution for three days of non-consecutive absences. In fact, consistent with the Union’s interpretation of the new contract language, the Employer was only issuing Letters of Caution after five days of non-consecutive absences. The inclusion of this language placed a contractual burden on the Employer to identify its suspicion of sick leave abuse as the reason for discipline, and cease the issuance of routine and perfunctory Letters of Caution based only on the number of the sick leave days used by the employee.”

Woodford County, 130 LA 843 (Cohen 2012).