Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
Teacher attendance is a problem in my school. To be sure, most of the teachers are committed professionals whose attendance is admirable. However, a few of my teachers are out a lot, sometimes calling out sick and other times asking for FMLA leave. To make matters worse, they often take all of their available personal days to boot. When you total it all up, some of them are out more than 10% of the school year.
Continuity of instruction is important, and I fear that these slackers are hurting student achievement at my school. I really want to do something, and I have come up with a plan that I intend to announce at the faculty meeting next week. But I don’t want to pick a fight that I cannot win, so here I am seeking a little free legal advice.
Specifically, I plan to keep careful track of teacher attendance, and when total absences in a school year for an individual exceed ten days, I will send a warning letter to the teacher that his or her attendance is unacceptable and that a continued pattern of absenteeism will result in further disciplinary consequences, up to and including termination of the contract. For good measure, these teachers will not be permitted to take any personal leave for the rest of the year. I think that this plan is a thing of beauty, but you are the lawyer, so you tell me. Can I do this?
I applaud your energy, and teacher absenteeism is a serious concern. However, implementing parts of this plan will cause big problems.
Let’s start by focusing on what you can do. Keeping track of teacher attendance is certainly appropriate. Moreover, you can talk with teachers after their absences exceed threshold amounts. These simple steps can make a big difference. Some administrators are passive in the face of apparent overuse of sick leave, figuring that there is nothing that they can do. That attitude can promote a culture of indulgence and abuse. By contrast, when teachers know that you are paying attention and are ready to confront them over their use of sick leave, they may be less willing simply to call out sick.
That said, your plan goes too far in two respects. First, whether or not you can prove abuse of sick leave, teachers are entitled to take personal leave under qualifying circumstances as set forth in the contract. A blanket denial of the right to take a personal day under appropriate circumstances will violate the collective bargaining agreement.
Second, you have to be particularly careful with FMLA leave. The right to take FMLA leave (under qualifying circumstances, such as the serious health condition of a child or spouse) is protected by federal law. You may never threaten a teacher with adverse consequences for taking FMLA leave. To be sure, when a teacher is out intermittently for regular sick leave and then takes an FMLA leave, there can be a significant negative impact on students. While you remain free to confront teachers over their use of sick leave, you should exclude absence due to FMLA leave from any such discussion. A critical conversation with a teacher over his or her use of FMLA leave now may invite a retaliation claim later. For example, if you have need down the road to discipline the teacher or even recommend termination of employment, the teacher may well claim that your action was in fact motivated by your resentment over the teacher’s exercising his or her protected right to request and to take FMLA leave. To support such a retaliation claim, the teacher would point to your inappropriate criticism of his or her FMLA leave. Think what you will about a teacher’s taking FMLA leave, but mum’s the word.
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