Arbitrator’s Sick Leave Decision Violates FMLA, Is Overturned

Burlington County, New Jersey is party to a collective bargaining agreement with Local 249 of the Police Benevolent Association. The sick leave section of the contract provides that “if it is reasonably suspected that the employee is abusing the sick leave privilege, the Jail Administrator may require the employee seeking leave to submit proof of illness. If the employee fails to provide proof of illness, the employee shall suffer loss of pay for such time.”

Officer Ralph West is a member of Local 249’s bargaining unit. West applied for and initially received approval to use sick leave for intermittent family leave to care for his son, who has sickle cell anemia and suffers intermittently from a variety of serious health conditions, including strokes. In 2010, the County required West and a number of other employees to submit proof of illness after each sick day usage. The County put West on the sick leave abuse list because of the amount of sick leave he used, not because of any allegations that he abused sick leave.

West did not provide a doctor’s note in connection with an absence on May 2, 2010, and was docked eight hours for the day. Local 249 challenged the “docking” by referring a grievance on the issue to arbitration. When an arbitrator held that the County could legitimately treat West as a “suspected sick leave abuser,” Local 249 asked a court to overturn the Arbitrator’s decision.

A New Jersey appeals court agreed with Local 249. The Court found that “the FMLA allows an employee to take intermittent leave as a result of the employee’s or the employee’s family member’s serious health condition when medically necessary. West applied for and received permission for family leave due to his son’s medical condition, which permission was based upon a doctor’s certification. The very nature of that condition made intermittent leave necessary.

“Requiring recertification by a doctor for each exercise of intermittent leave interferes with the exercise of FMLA rights, especially where, as here, there is no evidence of prior abuse of intermittent leave involving West’s son. Because we have concluded that the County’s recertification requirement improperly interfered with West’s rights under the FMLA, we affirm the trial court’s decision overturning the arbitrator’s opinion.”

PBA, Local 249 v. County of Burlington, 2013 WL 173793 (N.J. Super.A.D. 2013).