Sick leave verification:
A doctor a day
In the past few months, our firm has handled a
number of grievances where a public employer
has attempted to institute a requirement that sick
time be verified by a physician’s note or certification.
Under rulings of the Public Employment Relation Commission (PERC), upheld by the courts, a
public employer has a managerial prerogative to
require sick leave verification. However, the question of the ancillary effects of such policies, such as
who is to pay for the required doctor’s
notes/reports, is severable, and subject to negotiation as a mandatorily negotiable issue. The issue of payment for this new requirement struck a proper balance of interests between public employees
and the public employer, and did not significantly interfere with the
determination of a governmental policy. As a result, the effects of
such policies are the proper subject of negotiation between the
employer and the collective bargaining unit. Some background on
what can be negotiated is helpful here, as the negotiable policies are
often confused with the employers’ managerial prerogative.
New Jersey Courts have also recognized that the government’s
interest in its managerial prerogative to determine policy must be
balanced against the interests of the public employees. According to
the Court, though, “in striking the balance, it is not enough to say
either that the subject at issue involves a managerial prerogative or
that it intimately affects the employees’ work and welfare.” Indeed,
those labels can be said of nearly every employment related subject.
The critical issue, the Court held, is a procedure that “will ‘significantly interfere’ with the managerial prerogative to determine government ‘policy.’” If it will, then the government interest will trump
the employees’ and the issue will not be negotiable, and the employer can set the policy at will.
Mandatorily negotiable issues are those “terms and conditions of
employment...which intimately and directly affect the work and
welfare of public employees and on which negotiated agreement
would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy.” Generally, a term and condition of employment that
intimately and directly affects the work and welfare of public
employees is negotiable. Examples of terms and conditions of
employment subject to mandatory negotiation include work hours,
workloads and personal and other leaves of absence.
In several instances, the Appellate Courts have found that requiring verification for sick leave is a managerial prerogative, but the
ancillary matters relating to costs of a physician’s visit and certification were mandatorily negotiable. In one case, a city challenged a
scope-of-negotiations determination of PERC. The Appellate Division held that the city had managerial prerogative to require sick
leave verification, but that question as to who was to pay for
required doctor’s reports was severable and subject to negotiation,
as it struck proper balance of interests of public employees and public employer and did not significantly interfere with determination
of governmental policy. This involved the City of Elizabeth establishing a policy requiring the verification for the use of sick time by a
physician. The Public Employment Relations Commission ruled,
and their decision was affirmed. The Court specifically stated:
On this appeal, the City of Elizabeth (city) challenges a decision of
[PERC] which held that although the establishment of a sick leave
verification policy is a non-negotiable managerial prerogative, the
question of the cost of such verification is severable and subject to
mandatory negotiation.
The commission agreed that the city was not obligate