Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: My fire department has a sick leave policy that states “Members of the Department on sick leave, when not hospitalized, are expected to remain at home, unless authorized by a physician for light duty.” There are exceptions for medical care, prescriptions, etc. Violation of this provision is grounds for dismissal. Is this a legal and supportable policy?
Answer: Assuming the policy is properly implemented there is nothing inherently illegal with such a policy. By properly implemented I mean in a collective bargaining work environment it would have to be negotiated. In addition it cannot have been implemented in retaliation for any protected activities (ie. it could not have been adopted in retaliation for someone’s use of sick leave under the Americans with Disabilities Act or Family Medical Leave Act, or perhaps some other protected activity such as firefighters exercising their First Amendment Rights or concerted activity rights).
Such a policy must also be administered properly and fairly across the board or it could run afoul of the ADA, FMLA or even violate someone’s substantive due process rights. Nevertheless there is nothing inherently illegal in requiring someone who is claiming to be sick to comply with such a policy.
As for whether such a policy is “supportable”, I suppose it depends on who is paying for an employee to stay out of work. I worked with a firefighter who owned a side business. This firefighter regularly abused his fire department sick leave often boasting he “had a right” to use it whenever he wanted whether or not he was sick. Oddly enough he did not offer ANY SICK LEAVE to the employees of his side business (some of whom were struggling financially to raise families themselves). Either they came to work or they did not get paid. When I asked him about the hypocrisy his response was that if he offered them sick leave they would abuse it. I also know a union that uses non-union bartenders at its hall and does not offer them any sick leave… yet the same union members would be the first to cry foul if such a policy was implemented to restrict their use of sick leave.
