Managing sick and injured employees.

Managerial strategies for dealing with sick and injured employees in law enforcement organizations often raise legal questions concerning the fights of employees and the prerogatives of management. This article discusses sicknesses or injuries that temporarily may interfere with an employee's ability to work but is not of sufficient magnitude to require "reasonable accommodation" under the Americans with Disabilities Act (ADA).(1) In this particular context, the article discusses strategies for managing the use of sick leave and for the effective and efficient use of so-called light-duty positions.

SICK LEAVE USE AND ABUSE

Many law enforcement employers have created incentives that reward conservative use of sick leave. Some examples of such incentives include 1) allowing employees to apply accrued sick leave in determining creditable years of service for pension calculation; 2) buying back a percentage of unused sick leave at retirement or at the end of the leave year; and 3) granting the right to convert a percentage of unused sick leave to vacation time.

Examples of punitive measures applied to employees who use excessive sick leave include a system for tracking and maintaining precise records reflecting days and hours of the shift, including the first or last day of the shift, and the proximity of used sick leave to holidays. This documented information is relevant for purposes of performance evaluations and promotions. This documentation also identifies patterns that may substantiate frivolous use or reveal other patterns of misconduct. Another punitive measure includes a policy that requires employees to produce a doctor's certificate after using a specified amount of sick leave. A third policy denies documented "sick leave abusers" departmental approval for secondary employment.

Fitness for Duty Medical Examinations

Can an employee with a prolonged and egregious history of absenteeism and a record of on-the-job illnesses be ordered to undergo a fitness-for-duty medical examination? In Yin v. State of California,(2) the United States Court of Appeals for the Ninth Circuit upheld management's prerogative to order such a test as constitutional and not in violation of the ADA because "...when health problems have had a substantial and injurious impact on an employee's job performance, the employer can require the employee to undergo a physical examination designed to determine his or her ability to work, even if the examination might disclose whether the employee is disabled or the extent of any disability."(3) The court also found that the test furthered the substantial interest "...in assuring a productive and stable workforce."(4)

Restricting Employee Activity While on Sick Leave

To what extent can law enforcement agencies implement policies that restrict employees from leaving their residences while on sick leave in order to discourage sick leave abuse and malingering? In Crain v. Board of Police Commissioners,(5) the United States Court of Appeals for the Eighth Circuit upheld the constitutionality of sick leave regulations that prohibited an officer from:

...leaving his residence or place of confinement while on the sick list except to obtain medical treatment or attention or at the direction of the attending physician for the express purpose of therapeutic exercise and after approval from the office of the chief of police.(6)

The court began its analysis by noting that most courts have upheld such regulations because of "...the broad deference that must be accorded a municipality charged with the efficient management of its departments and have been mindful of the need to prevent abuses of liberal sick leave policies wherein absent employees continue to be paid with taxpayer money."(7) The court acknowledged that the regulations are stringent but nonetheless found them rationally connected to departmental interests in "...safety and morale by expediting the recovery of sick officers, minimizing the burden on officers who may have to work longer hours while other officers are out sick, and assuring that officers on sick leave are not malingering and that the sick leave policy is not abused."(8) Because the regulations did not limit whom the officers associated with in their homes or restrict the frequency or duration of visits, the court said the "...prohibition on outside-the-home visits to family and friends while on sick leave is entirely reasonable and not unduly restrictive."(9) Finally, the court agreed that "...it is within a police department's broad discretionary power to determine that an officer who is too ill to report for his scheduled duties on an election day is too ill to leave his home to vote."(10)

A federal district court in Koreny v. City of New York(11) also upheld the constitutionality of regulations that require employees on paid sick leave to remain at home between 7 a.m. and 9 p.m., with the exception of Sundays and legal holidays, unless otherwise authorized pursuant to departmental guidelines. Even though the hours the sick employee must be at home are greater than the normal workday, the court concluded that: "...this requirement is certainly a rational way to protect against 'goldbricking.' It is reasonable, after all, to expect that an employee too ill to work is too ill to be going about other matters outside the home, even beyond the hours of 9 to 5."(12)

Guidelines Must Ensure Nonarbitrary Application

Managers considering the implementation of such sick leave regulations must include clear guidelines that ensure nonarbitrary application. In that regard, in Uryevick v. Rozzi,(13) a federal district court held unconstitutional regulations requiring officers on sick leave to remain in their homes from 9 a.m. to 5 p.m. unless granted permission to leave and requiring those designated as sick leave abusers to remain in their homes for up to 24 hours per day when on sick leave. The court endorsed the general proposition that the constitutionality of such sick leave regulations depends on whether they are rationally connected in a nonarbitrary fashion to legitimate police department interests.(14) In contrast to the regulations upheld by the court in Crain, the regulations in the instant case contained no written guidelines governing the determination of whether a particular request to leave home is for a "reasonable purpose and time" or when an officer should be designated a sick leave abuser. This lack of guidelines created the potential for a wholly arbitrary application of the regulations.(15) In that regard, a policy of carefully tracking and documenting sick leave use as suggested previously in this article presumably would have allowed the department to establish objective criteria for designating a "sick leave abuser" based on documented patterns, frequency and reasons for sick leave use.

In finding the regulations unconstitutional, the Uryevick court stressed the lack of guidelines "...and not a belief that the police department's interest in monitoring injured officers' activities is in any way trivial."(16) The court suggested that "...the police department should develop a set of regulations rationally connected to the county's legitimate goal of monitoring its sick and injured officers, including guidelines to ensure their non-arbitrary application."(17)

Sick and Medical Leave as a Legal Entitlement

In addition to an employee's entitlement to sick and medical leave created by applicable laws and agency policies, employees also may be entitled to extended leave under the Family and Medical Leave Act (FMLA).(18) Congress passed the FMLA in 1993 to help employees balance the burden of caretaking among family members and also to balance the demands of the workplace with the demands of family. The goal of the FMLA was not to supplant employer-established sick leave and personal leave policies but to provide leave for more uncommon and, presumably, time-consuming events such as a "serious health condition." The Act establishes minimum standards to address employee/family medical leave needs.

One portion of the FMLA that relates to employee sickness or injury provides eligible employees with up to 12 weeks of unpaid leave per year for a serious health condition that makes the employee unable to do his or her job.(19) Department of Labor regulations provide comprehensive guidance concerning what constitutes a serious health condition under the FMLA.(20) While it is beyond the scope of this article to detail those regulations, they specifically exclude, unless complications arise, ailments such as the common cold, the flu, upset stomach, and the like from the definition of a serious health condition.(21)

However, such common ailments, when linked together, may constitute a serious health condition. The United States Court of Appeals for the Seventh Circuit recently ruled in Price v. City of Fort Wayne(22) that multiple diagnoses, when linked together, could give rise to a serious health condition even though none of the conditions standing alone would trigger FMLA protection. The court broadly interpreted the term "serious health condition" by rejecting as illogical the argument that an employee's ability to perform at work could be seriously impaired by a single serious illness but not by multiple illnesses having a serious impact.(23) Thus, before taking adverse action for an employee's excessive absenteeism, managers should determine whether the employee is entitled to FMLA leave based on the Price court's interpretation of the term "serious health condition."

LIGHT DUTY AS A MANAGERIAL OPTION

The ADA mandates a "reasonable accommodation" for an employee who is "disabled" but otherwise qualified to perform all of the essential functions of the job with this accommodation.(24) Conversely, as a general matter, no such affirmative duty exists for employees who are sick or injured but only temporarily unable to perform the essential functions of their positions.(25) Nonetheless, many law enforcement employers elect to create positions that require employees to perform only a limited number of essential functions, often referred to as light-duty positions. These positions are generally limited in duration and allow a trained employee to continue to provide valuable services during a period of temporary sickness or injury.

The development of a light-duty policy - including the nature, number and duration of light duty positions - is essentially a function of managerial discretion. The policy should be based on clearly articulated departmental needs. For many departments, using trained and talented officers to perform light-duty tasks is preferable to having them home on sick leave. Because temporarily sick or injured officers may be entitled to receive employer-funded disability payments or workers' compensation benefits, it may make good economic sense to assign these employees to light-duty jobs so they can perform some work for the income they would be receiving anyway.

Distinguishing Light Duty and Reasonable Accommodation

Employers are not required by the ADA to create light-duty positions as a form of reasonable accommodation.(26) Moreover, a department lawfully can decide to discontinue a particular light duty assignment that has, in fact, served as an accommodation for an injured or sick employee.

For example, the United States Court of Appeals for the Fourth Circuit in Champ v. Baltimore County(27) ruled that a department could terminate an officer following a 16-year light-duty assignment after an off-duty motorcycle accident that left him unable to use his upper left arm. Under the department's light-duty policy, the officer was entitled to a light-duty assignment only for a total of 251 days. Because no reasonable accommodation could have enabled him to adequately perform the essential functions of making forcible arrests, driving a vehicle under emergency conditions, and qualifying with a weapon, he was not a qualified individual with a disability under the ADA. The court therefore concluded that it is not a reasonable accommodation that an employer be required to assign an officer permanently to a light-duty position.(28) In that regard, the court noted that although the ADA provides that reasonable accommodations may include reassignment, the statute explicitly limits such reassignment "to a vacant position."(29) Of course, for operational reasons, a department may choose to have no light-duty positions.

Light Duty for Pregnant Employees

Courts generally have held that pregnancy and related medical conditions are not "disabilities" for which a "reasonable accommodation" is mandated under the ADA.(30) Nonetheless, an officer temporarily unable to perform the essential functions of her law enforcement position because of pregnancy may be entitled to a light-duty position under the Pregnancy Discrimination Act (PDA).(31) The Act includes, in the prohibitions against discrimination based on sex, a bar against discrimination because of or on the basis of pregnancy, childbirth, or related conditions.

It is a well-settled principle that the PDA is violated when pregnant employees are denied such privileges when sick leave or light-duty is afforded nonpregnant, temporarily disabled employees.(32) Simply stated, "...it is a violation of the PDA for an employer to deny a pregnant employee the benefits commonly afforded temporarily disabled workers in similar positions or to discharge a pregnant employee for using these benefits."(33) Thus, while a department may, as a matter of policy, choose not to have any light-duty positions, a pregnant officer must be afforded the opportunity to work an available light-duty assignment on the same basis as other similarly situated employees.

Courts also hold that the PDA prohibits an employer from forcing a pregnant officer to accept light duty simply because the employer believes it is unsafe for a pregnant officer to work patrol. Instead, an involuntary light-duty assignment is only legally justified where an employee's pregnancy is determined by a medical evaluation to be incompatible with the duties of her regular position.

In Allison-LeBlanc v. Department of Public Safety,(34) a state appellate court ruled that a probationary state trooper was illegally discriminated against in violation of the PDA when she was removed from her patrol duties because of pregnancy. In that case, a state police order excluded pregnant women from working regular duty from the onset of pregnancy and required them to work light duty or be placed on leave regardless of their ability to perform road patrol duties. Nonpregnant female officers and all male officers who were diagnosed with a medical condition were not relieved of road patrol duty without a medical evaluation of disability or inability to perform the required work. The court held this was disparate treatment on the basis of pregnancy in violation of the PDA.(35)

A departmental policy of only offering light duty for on-duty injuries, thereby excluding all pregnant employees, is legally problematic, according to a recent federal district court decision. In Lehmuller v. Sag Harbor,(36) officers who became disabled due to illness or off-duty injury were required to use their sick leave and their benefits, while officers injured in the line of duty and unable to perform their patrol duties would be assigned light-duty jobs compatible with their condition. The department claimed this policy stemmed from state law that required that officers injured in the line of duty receive full pay whether they work or not, and the policy was designed to ensure that officers perform whatever work they can in exchange for their pay.

A pregnant officer denied light-duty under this policy claimed it violated the PDA. The court found that the department's light-duty policy had an adverse impact on pregnant officers and that the officer had established a prima facie case of disparate impact discrimination.(37) Despite the department's contention that the policy was imposed to enable the taxpayers to receive some benefit from the salary provided officers injured in the line of duty, the court questioned whether the department "...truly had a business necessity for its policy."(38)

Finally, courts have held that the PDA "...does not prevent an employer from treating pregnant employees more beneficially than it treats other employees.(39) In that regard, the Supreme Court had noted that "Congress intended the PDA to be a floor beneath which pregnancy disability benefits may not drop - not a ceiling above which they may not rise."(40) Accordingly, a light-duty policy designed specifically to accommodate pregnancy-related disabilities presumably would not violate the PDA.

CONCLUSION

Law enforcement organizations should develop policies regarding sick leave and light-duty that reasonably balance legitimate managerial prerogatives with the rights and needs of sick and injured employees. Federal and state laws have created a complex maze of regulations governing an employee's legal entitlement to sick leave benefits and light-duty positions. Competent law enforcement legal advisors should review all departmental policies concerning sick leave and light duty to ensure that those policies are in full compliance with federal and state laws.

Endnotes

1 42 U.S.C. [section] 12101 et. seq. (1996).

2 95 F. 3d 864 (9th Cir), cert denied, 117 S.Ct. 955 (1997).

3 Id. at 868.

4 Id. at 873.

5 920 F.2d 1402 (8th Cir 1990).

6 Id. at 1406 at n.4.

7 Id. at 1407. But see, Pienta v. Village of Schaumburg, 710 F.2d 1258 (7th Cir 1983)(Applying strict scrutiny to regulations that impact on rights protected by specific provisions of the Bill of Rights and finding that the city did not articulate a compelling interest to justify the police department's sick leave regulations.).

8 Id. at 1409.

10 Id. at 1410.

11 699 F. Supp. 388 (E.D.N.Y. 1988).

12 Id. at 393.

13 751 F. Supp. 1064 (E.D.N.Y. 1990).

14 Id. at 1068.

15 Id. at 1069.

16 Id. at 1071.

17 Id.

18 29 U.S.C. [section] 2601 (1996). The Department of Labor has set forth detailed regulations regarding the FMLA at 29 CFR [section] 825.100 et. seq. (1996).

19 29 CFR [section] 825.207. These regulations do provide that, under certain circumstances, an employee can choose to substitute accrued paid leave for all or part of the 12 weeks of FMLA leave.

20 See 29 CFR [section] 825.114 (1996).

21 29 CFR [section] 825.114(c).

22 117 F.3d 1022 (7th Cir 1997).

23 Id. at 1025.

24 42 U.S.C. [section] 12111(8).

25 42 U.S.C. [section] 12102(2). See also, Sanders v. Arneson, 91 F.3d 1351 (9th Cir 1996); and Rogers v. International Marine Terminals, 87 F.3d 755 (5th Cir 1996).

26 See, Howell v. Michelin Tire Corp, 860 F.Supp 1488 (M.D. Ala. 1994).

27 884 F. Supp. 991 (D.Md. 1995), aff'd, 91 F.3d 129 (4th Cir 1996).

28 Id. at 1000.

29 42 U.S.C. [section] 12111(9)(8). See also, Conklin v. City of Englewood, 1996 WL 560370 (6th Cir 1996), which held that a department was not required to create a new position (i.e., existing position at higher salary) to accommodate an injured employee.

30 See, e.g., Richards v. City of Topeka, 934 F.Supp. 378 (D.Kan. 1996).

31 42 U.S.C. [section] 2000e(k).

32 Byrd v. Lakeshore Hospital, 30 F.3d 1380 (11th Cir 1994).

33 Id. at 1384-85.

34 671 So.2d 448 (La. App. 1 Cir 1995).

35 Id at 452.

36 944 F. Supp. 1087 (E.D.N.Y. 1996)

37 Id. at 1092.

38 Id.

39 Aubrey v. Aetna Life Ins Co, 886 F.2d 119 (6th Cir 1989).

40 California Fed. Sav. & Loan Ass 'n v. Guerra, 479 U.S. 272 (1987).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.