Sick Leave and Hypocrisy

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.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
x

Check Also

Second Circuit Upholds FDNY Vaccine Mandate From Due Process Claims

The Second Circuit has upheld the suspension without pay, and in some cases the dismissal, of some 86 FDNY firefighters who refused to comply with the city’s vaccine mandate in 2021. The firefighters alleged that the city’s failure to bargain over the vaccine mandate, coupled with the failure to comply with the city’s normal disciplinary requirements, constituted a violation of their due process rights.

Judge Abruptly Dismisses Suit Against FDNY

A lawsuit filed by a former FDNY electrician accusing the city of discrimination and retaliation has been dismissed, accompanied by a blistering decision by the trial judge. Edward Pitre filed the action in 2018 alleging race discrimination, retaliation, and a violation of the Family and Medical Leave Act.