Contractual temporary leave must be extended to parents of a foster child when that foster child becomes seriously ill, according to an arbitrator’s ruling in a South Jersey case.

In March 2018, arbitrator James Mastriani considered a case involving contractual “serious illness in immediate family” temporary leave and its applicability to foster children.  At issue in the case was whether a foster child was considered a “child” for the purposes of the contractual leave. In the end, the arbitrator found the board violated the contract by denying the employee the leave, as a foster child was considered a “child” within the contract’s definition of immediate family.

The facts involved were rather straightforward.  The board and union were a part of a valid collective negotiations agreement that provided one day of leave for a serious illness in an employee’s immediate family.  The contract defined immediate family to be “spouse, child, son-in-law, daughter-in-law, parents, father-in-law, mother-in-law, brother, sister, grandparent, or grandchild.”  There was also a contractual requirement for a doctor’s note to be provided within one week of the leave being taken.

The New Jersey Division of Child Protection and Permanency placed the child with the employee on a Friday.  The state termed the employee a “family resource parent” for child placement purposes.  On the Monday immediately after placement, the employee called out from work and sought to have the absence charged against the contractual serious family illness leave.  The board rejected the employee’s request to use the contractual serious family illness leave, and charged him one-day personal leave.

After hearing testimony from the parties, the arbitrator rejected the board’s argument that the illness was not “serious” and determined the board’s basis for denial stemmed solely from the foster child status.  Thus, the arbitrator determined the issue involved was whether a foster child “fell within the meaning of the word ‘child’ in the definition of immediate family” as set forth in the contract.  The board’s position was “child” meant by blood or adoption.

In finding “foster child” was within the definition, the arbitrator determined not only was the contractual definition unclear and ambiguous, but there was no past practice upon which to assess the parties’ intention.  Thus, the arbitrator turned to the board’s policy regarding Family Leave, which defined “child” to mean “biological, adopted, or foster child” and New Jersey law regarding the Family Leave Act.

More specifically, the arbitrator noted N.J.S.A. 34:11-3 defined “child” to mean “biological, adopted, or resource family child,” while N.J.A.C. 13:14-1.2 defined “child” to include any child which the “employee is a biological parent, adoptive parent, foster parent, {or} resource family parent….”  In short, the arbitrator found the absence of clear “inclusionary or exclusionary language” about the meaning of “child” required consideration of outside evidence.

Although this case was from an arbitrator, and its genesis was the individual district’s contract, this case could have impact upon other districts throughout the state.

Indeed, many board contracts do not contain inclusionary or exclusionary language in their definitions of “immediate family” for leave due to family illness or bereavement.  As such, boards of education should review their existing definitions and consult with their board attorney regarding their individual contractual definitions.

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