In August 2019, the Public Employee’s Relations Commission (PERC) issued a decision that helped clarify school boards’ authority to administer sick leave policies for district staff.

This matter arose when the Middlesex Board of Education filed a scope of negotiations petition seeking to restrain arbitration of grievances filed by the Middlesex Education Association. A scope petition typically asserts that the matter under consideration lies outside the scope of the collective negotiations agreement (CNA) between the parties. Matters deemed outside the scope by PERC are not subject to arbitration.

The decision, P.E.R.C. NO. 2020-7, arose from a grievance challenging the superintendent’s directive to a teacher that required the teacher to provide a doctor’s note within three days of returning to work for all future sick days. The Middlesex Association contended this requirement was a direct violation of the parties’ CNA because there was no such time limit in the agreement.

The CNA indicated that “upon request” the employee shall present a physician’s statement of illness to the superintendent. On Nov. 2, 2018, the superintendent of schools issued a letter to the tenured teacher, notifying her that since all of her sick and personal days had been exhausted (including an additional four days without pay), a doctor’s note would be necessary each time she was absent in the future. Additionally, the letter directed that for future absences, the teacher was to provide a doctor’s note within three days of her return to work.

In response, the Association filed two grievances, alleging the board violated the CNA. Specifically as it pertained to this incident, the grievance challenged the directive requesting a doctor’s note within three days of her return to work. The grievance was elevated to and denied by the board of education. The Association then filed a request for submission to a panel of arbitrators alleging “discipline without just cause” for the grievance. The  board responded by filing the scope petition at PERC.

In deciding the matter, PERC took into account N.J.S.A. 18A:30-4, which established a school board’s ability to require a physician’s certificate to verify sick leave. According to that statute, a public employer (the board) has a managerial prerogative to verify that sick leave is not being abused, which includes the ability to verify sick leave at any time. Previous PERC cases have determined that the employer’s right to verify illness includes the right to determine the number of absences and the situations that trigger a doctor’s note requirement, regardless of whether the employees have exhausted their earned sick leave.

While requiring a teacher to submit a doctor’s note for future absences is a part of the board’s managerial prerogative, “the application of a policy, the denial of sick leave pay, sick leave procedures, penalties for violating a policy, and the cost of a required doctor’s note are all mandatorily negotiable” and may be challenged through contractual grievance procedures.

PERC specifically determined that the time in which an employee is required to submit a doctor’s note to verify sick leave may be a negotiable issue, subject to arbitration. PERC further reasoned that a directive mandating a doctor’s note each time a sick day was used was not on an “upon request” basis as stated in the CNA.

PERC relied on a previous decision from 2002 in regards to the County of Passaic when making its determination on this case. In that decision, the Commission restrained arbitration over a challenge to the employer’s prerogative to verify weekend sick leave call outs via doctor’s notes.

However, PERC declined to restrain arbitration over the policy’s directive that employees who did not substantiate their illness be docked accordingly and could be subject to disciplinary action. PERC recognized that visiting a doctor on a Saturday or Sunday might not be possible if a visit to emergency care is not needed and the doctor’s office is closed. In such instances, a doctor’s note may be unobtainable, thereby excusing the need for such doctor’s notes.

Following the precedent established in the Passaic decision described above, PERC found that the issue of how many days members of the Association have to submit a doctor’s note following use of a sick day is a negotiable procedural issue that is distinct from the board’s prerogative to verify that illness. Therefore, PERC determined that while the portion of the grievance contesting board’s demand for a doctor’s note was not subject to arbitration, the portion of the grievance challenging the three-day period to submit a doctor’s note was subject to arbitration.

In summary, the order by PERC sustained the board’s decision to require a doctor’s note from the grievant for future absences, but denied the board’s imposition of a three-day period to submit the doctor’s note.

For more information, board members may wish to contact their board attorney, or the NJSBA Legal and Labor Relations Department at (609) 278-5254.