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EXCESSIVE SICK LEAVE: DRIVING WITHOUT A MAPSteven S. Glickman

Hypothetically: A public employer has a collective bargaining agreement with a labor organization. The collective bargaining agreement provides its bargaining unit members with fifteen sick days per year. This public employer has a 20-year bargaining unit member who has used all three hundred of those sick days. The question is: Has the bargaining unit member engaged in an excessive use of sick time, and is that bargaining unit member subject to disciplinary action? If the governmental employer is under the jurisdiction of the Civil Service Commission, the answer is: Who knows?!

Appeals of disciplinary actions taken by public employers under the jurisdiction of the Civil Service Commission are brought before the Office of Administrative Law and heard on a de novo basis by an Administrative Law Judge. Unfortunately for public employers (and public employees and their labor organizations as well), Administrative Law Judges have been provided with no guidance from the Office of Administrative Law as to the definition of “excessive sick leave.” Numerous times, some in conjunction with attorneys representing labor organizations, I have requested from the Office of Administrative Law guidance as to what does and does not constitute “excessive sick leave” so that unnecessary litigation can be avoided. The response has always been the same: “It’s up to the individual ALJ.”

Some Administrative Law Judges have indicated that if the Bargaining unit member has not exceeded his or her contractual sick time, the usage is not excessive. Other Administrative Law Judges have indicated that even contractually permitted sick leave use could be considered excessive, depending on the circumstances.

What is a public employer to do? The public employer cannot leave the determination whether the bargaining unit member’s sick leave usage is excessive to the whims of the Administrative Law Judge. It is incumbent upon the public employer to define “excessive sick leave” in the collective bargaining agreement with the labor organization or organizations.

One caveat is not to confuse “excessive” use of sick time with “abuse” of sick time. “Excessive” is exactly what it says: a bargaining unit member is using too much (an excessive amount of) sick time. Public employers need not accept that a public employee’s use of sick time is not excessive until it exceeds the contractually provided sick time. “Excessive” can generally be defined on an annual or monthly basis.

“Abuse” means that a public employee is using his or her sick time for a purpose other than that which is permitted by the collective bargaining agreement. A public employee can abuse sick time without having that abuse be excessive. The opposite is also true.

A negotiated agreement with the labor organization regarding a disciplinary policy for excessive use of sick leave would also assist in avoiding unnecessary litigation. By taking these proactive measures, public employers will regain control over excessive use of sick time instead of leaving this issue to the vagaries of the Office of Administrative Law.

This analysis also holds true for non-bargaining unit employees and/or non-Civil Service Commission public employees. Public employees in these circumstances are governed by the public employer’s personnel policies/employee handbook. It is incumbent on public employers in these circumstances to ensure their personnel policies clarify the definition of excessive sick leave. By doing so, public employers will avoid leaving the determination of what is or is not excessive use of sick time to whomever is ultimately making the judicial determination on any disciplinary action taken against the public employee.