Sick Leave Retaliation

When it comes to sick-time policies, there can be a fine line between an employer enforcing their terms in good faith and using them for purposes of retaliation or discipline. In a January 2010 Public Safety Labor News article titled “Police Department’s Sick Time Policy Violates ADA”, we learn that the Dracut Police Department in Massachusetts is one employer who crossed that line. The Massachusetts Division of Labor Relations ordered the Department to end its use of an illegal sick-time policy, which was being inappropriately administered and was found to be in violation of the Americans with Disabilities Act (ADA).

The bargaining agreement between the Town and the Union contained a policy in which officers were to call in and notify the Deputy Chief of their symptoms, and he would grant or deny the request. However, this policy was only to be used when it was believed the officers were abusing the sick-time policy or if the sick time exceeded four days. A female officer, who used three days of sick time, refused to provide the requested information, as she felt it violated her medical privacy. The Deputy Chief then wrote to the officer, voicing a concern that she may pose a safety risk to the citizens of the town, and demanding that she comply with a variety of tests and random drug screening. The interesting part of this is that she was expected to report to work during the tests.

The Union argued that the actions of the Town were retaliatory and disciplinary, and that the Deputy Chief’s demands for information were in violation of the ADA. The Town’s defense was that these practices were necessary to monitor the usage of sick time and to conduct business. An arbitrator found that the policy did in fact violate the ADA, as it did not measure fitness for duty, especially considering the department allowed her to work during the testing period. The arbitrator found that the Deputy Chief’s actions were not made in a good-faith belief that the sick-time policy was being abused, but that he was retaliating against her for refusing to comply with his request.

It is always best to consult with a legal counsel to ensure the policies in your bargaining agreement are being appropriately administered. Bargaining agreements outline a variety of practices to be used in assessing the fitness for duty of its employees, or to ensure fair use of benefits. However, these practices must not be utilized at the whims of employers for what, in some cases, amounts to disciplinary actions.

This blog post was written by Adriel Lage, Legal Assistant to Matthew Brick. Feel free to contact her at adriel.lage@brickgentrylaw.com.