Article
Personal Leave Banks – A New Reserve?
by Kim C. Belin, Esq.
Employee illness or injury can occur at anytime. Under current law, all school district employees who are steadily employed are entitled, pursuant to N.J.S.A. 18A:30-2, to a minimum of 10 days of sick leave per year. In the case of catastrophic illness or disability requiring prolonged absence, it is not unusual for an employee to exhaust his/her annual and accumulated sick days prior to the end of the school term. Many districts when faced with this scenario consider creating a sick bank. A sick leave bank would allow an employee suffering from a catastrophic illness and who has exhausted his/her annual and accumulated sick days additional paid leave by using sick days "deposited" in a bank.
Most employers are sympathetic to unforeseen catastrophic illness or disability. Most employees cannot financially afford prolonged unpaid absences from work. A sick leave bank creates a win-win situation. First, it assists the employee suffering from the catastrophic illness by providing additional paid sick leave. Second, it also promotes good will among the staff by allowing co-workers to help an ailing employee. In theory, teachers donate one sick day per year into the bank, which can be used by an employee only after the employee has exhausted his/her annual and all other accumulated leaves, and has met other criteria established by the board (i.e. must be absent a minimum of thirty days or verification of continued disability).
Theoretically, this is a practicable mechanism that ably resolves the employee's dilemma. However, the Appellate Division and the Public Employment Relations Commission ("PERC") have ruled that blanket extended sick leave is an illegal topic of bargaining in school districts because it is pre-empted by N.J.S.A. 18A:30-6. This statute grants boards the discretion to allow extended leaves on a case-by-case basis, and to deduct the cost of a substitute from the teacher's regular salary for any additional sick leave granted.
In reliance upon this statute, the Appellate Division rejected extended total disability leave benefits as a matter of right. In Board of Education of Piscataway Township v. Piscataway Maintenance & Custodial Association, 152 N.J. Super. 235 (App. Div. 1977) the Appellate Division ruled that by granting employees extended total disability leave as a matter of right, the board surrenders its statutory obligation to deal with each case on an individual basis.
PERC addressed this issue and rendered similar rulings in two decisions. First, in Delaware Township Board of Education and Delaware Township Education Association, P.E.R.C. No. 87-50, 12 NJPER 840 (¶17323 1986), the union proposed the establishment of a sick bank in which the teachers would donate one sick day per year for a maximum of 120 days. However, PERC relied upon N.J.S.A. 18A:30-6 to reject this blanket extended sick leave. Second, in Plainfield Board of Education and Plainfield Education Association, P.E.R.C. No. 88-46, 13 NJPER 842 (¶18324 1987), PERC also ruled against the union's proposal to establish a sick leave bank even though it did not require the board to grant any additional days. PERC found the proposal nevertheless trampled on the board's discretion to determine requests on a case-by-case basis.
In addition, there is a strong argument that sick leave banks contravene N.J.S.A. 18A:-30-1 because that statute defines sick leave as personal illness or disability. This statute may preclude an employee from contributing sick days for someone else's illness/disability. Moreover, if employees are mandated to contribute to the bank, and if employees only receive the statutory minimum number of sick days, then receiving less than the 10 cumulative days to employees may contravene N.J.S.A. 18A:30-1.
So, what recourse do school districts have when faced with an employee who has a serious illness that requires a prolonged leave, but where the employee has exhausted his/her annual and accumulated sick leave? A viable alternative is a sick bank based on personal days. This type of bank avoids the statutory minimum sick day issue, and does not require the board to relinquish its discretionary authority to decide each case individually because the board retains final authority to determine whether the extension should be granted. The board also retains the discretion to determine whether a substitute will be used.
The PERC Litigation Alternative Program reviewed a sick bank using personal days rather than sick days and determined that the sick leave bank could be preserved if the board included language declaring that the board's decision was final, binding, and non-arbitrable. In the Matter of Lower Camden County Board of Education and Lower Camden County Education Association, L.D. No. 90-7, Dkt. No. LP-90-5, February 15, 1990. Any board of education considering establishing a sick leave bank based upon personal days should consult with their board attorney or contact a CS attorney to ensure full compliance with the law.
This article was written by Kim C. Belin, Esq.
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