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No Mutiny, No Termination

On November 13, 2018, the City of Virden, Illinois served a notice of termination on a dispatcher by the name of Ibberson. The notice detailed four reasons for termination: (1) that Ibberson had encouraged another dispatcher to disregard telephone calls from the Department and had informed him of the date and time when she planned to call in sick; (2) by engaging in “insubordination or mutinous activity” by encouraging…

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Arbitrator Can Consider Unfunded Pension Obligation In Deciding Sick Leave Issue

Local 49 of the International Association of Fire Fighters represents firefighters working for the City of Bloomington, Illinois. Since 1992, the parties’ various collective bargaining agreements included a sick leave “buy-back” provision, pursuant to which the City would compensate retiring firefighters for unused sick leave time. The 2009 to 2012 contract allowed Union members to receive payment from the City for 100% of their unused sick leave, up to…

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Q & A

From California Question: Does the FMLA restrict an employer from contacting an employee who is off on sick leave (stress) to set up a future interview date/time for an IA investigation where the employee is the subject of that investigation? Rumor is the stress medical condition is partly caused by the employee being the subject of the IA investigation. Answer: To the best of my knowledge, this issue isn’t…

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Union Entitled To Sick Leave Records Of Supervisors

Part of the obligation to collectively bargain in good faith is the obligation to exchange information about mandatory subjects of bargaining. This obligation frequently arises in a grievance arbitration setting, where either the employer or the union is seeking records in the other’s possession. A slight twist on the usual case occurred in Newark, New Jersey, where Lodge 12 of the Fraternal Order of Police (FOP) was processing four…

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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…

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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…

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Absent Contract, No Right To Payment For Sick Leave Upon Termination

A group of former correctional officers for the Cabell County, West Virginia Sheriff’s Office sued the County, seeking payment for their accumulated sick leave. The positions of the corrections officers were terminated in December 2003 when the Cabell County Jail closed, and its prisoners were transferred to the new Western Regional Jail under the direction of the Regional Jail Authority. Although many jail employees obtained employment at the new…

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Town Allowed To Require Doctor’s Notes On Sick Days Adjoining Days Off

When the Town of Scituate, Rhode Island became convinced it had a sick leave abuse problem in its Police Department, it imposed a rule that officers desiring to use sick leave on workdays adjoining days off or the use of paid leave would be required to obtain doctor’s notes justifying the use of the leave. Local 502 of the International Brotherhood of Police Officers, representing rank-and-file employees, challenged the…

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Sick Leave Buyback Payments Can Be At Previous Year’s Rate

The collective bargaining agreement governing police officers working for the Borough of West Conshohocken, Pennsylvania contains a sick leave buyback clause. The contract allows police officers to accumulate up to 480 hours of sick leave. If an officer’s accumulation exceeds 480 hours, the contract requires the Borough to buy back five days of sick leave “at the hourly rate applicable to the officer during that calendar year.” When the…

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Male Officer Not Entitled To Maternity Leave

Ronald Wahl is a police officer for the Suffolk County, New York Police Department. Wahl’s child was born on December 20, 1999, and on January 14, 2000, Wahl requested that he be permitted to take maternity leave and deduct the days taken from his accrued sick leave. Department rules and procedures and the applicable collective bargaining agreement permitted a pregnant female officer to take nine months of leave after…

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Arbitrator Should Decide Sick Leave Issues

In April 2006, the Police Chief for the City of Binghamton, New York instituted new rules with regard to the use of sick leave. In July 2009, a police officer represented by the Binghamton Police Benevolent Association was counseled about an alleged pattern of suspected sick leave abuse and was ordered to provide doctor’s notes for all future sick leave absences. Shortly thereafter, the officer was again absent on…

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New Appeals Court Decision Sets Up Conflict In Law Applicable To Sick Leave Verification

The Americans With Disabilities Act (ADA) has a fairly broad medical privacy provision. The ADA states that an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”…

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Termination For Officer’s AWOL Status Does Not Violate FMLA

Ellis Jenerette, a Montgomery County, Maryland corrections officer, has moderate persistent asthma, which he treats with daily medication. Jenerette’s asthma began in childhood but worsened after he moved to Maryland in 1989. From the beginning of his employment, Jenerette failed to maintain regular job attendance. At Jenerette’s first job performance evaluation in May 2002, his attendance was rated as “marginal.” In every subsequent performance evaluation from May 2003 until…

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Fitness For Duty Examinations And The ADA

A recent case from a federal court of appeals examined the issue of how the Americans With Disabilities Act applies when a public safety employer requires one of its employees to submit to a fitness-for-duty examination. The case involved Charlene Wisbey, a dispatcher for the City of Lincoln, Nebraska. During January and February of 2007, Wisbey utilized a significant amount of sick leave due to an upper respiratory infection….

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Placement On Sick Leave Does Not Trigger Bill Of Rights

California's Public Safety Officers Procedural Bill Of Rights Act provides that “no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer…without providing the public safety officer with an opportunity for an administrative appeal.” The California Court of Appeals recently had to decide whether the involuntary placement of a police officer on sick leave triggers the…

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DROP Participants Do Not Lose Sick Leave

The Ross Township, Pennsylvania Police Department and the Ross Township Police Association are parties to a collective bargaining agreement. In December 2007, an arbitrator resolved all differences between the Township and the Association as to open negotiations issues. One element of the Arbitrator’s award was a deferred retirement option plan, known as a DROP plan. Under the DROP plan, officers would retire and immediately return to work. Retiring officers…

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Police Department’s Sick Time Policy Violates ADA

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…

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Columbus PD Sick Leave Verification Policy Called Into Question

Recent years have seen the sick leave verification programs of public safety employees increasingly under attack. Most usually, employees file lawsuits contending that an employer’s verification program violates their privacy rights under either the Americans With Disabilities Act or a general constitutional right to privacy. The sick leave verification policy for the Columbus, Ohio Police Department ran into tough sledding in federal court this summer. Under the policy, an…

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California Bill of Rights Applies Even Where Officers Are Cleared

Robert and Scarlett Paterson are Los Angeles police officers, married to each other. In December 2004, Robert called in sick. A lieutenant instructed Sergeant Adrian Legaspi to go to the Paterson home to find out if Robert was abusing sick leave. Legaspi spoke to both Robert and Scarlett. Subsequently, the Department initiated an investigation into misconduct complaints alleging that Robert and Scarlett had made false and misleading statements to…

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Employees Can Be Forced To Use Comp Time In Lieu Of Sick Leave

A group of corrections officers filed a Fair Labor Standards Act (FLSA) lawsuit against the City of Atlanta, Georgia. One of the claims made by the officers was that the City forced them to use their compensatory time off instead of sick leave to cover their absences due to illness or injury. As the officers described it, the City’s policies stemmed from the fact that sick leave was forfeited…

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Police Employee Terminated For Misconduct, Not For Alcoholism

Kathleen Nanos was an Office Support Specialist in the Stamford, Connecticut Police Department. Her general job duties included answering phones and serving members of the public who came to the records department. Nanos is an alcoholic. On three occasions in 2004, Nanos’ supervisors communicated with her regarding her use of sick and vacation time. The supervisors expressed concern that Nanos had used all of the time she had accrued…

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State Ruling On Sick Leave Confinement Policy Binds Federal Court

The Village of Hempstead, New York has a sick leave confinement policy that requires police officers using sick leave to be confined to their residence for the majority of time while on leave. Dawn Borum, a police officer with the Village, filed a state court lawsuit contending that the sick leave confinement policy unconstitutionally deprived her of her right to leave home to attend religious services. In the lawsuit,…

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