A Capehart Scatchard Blog

City Properly Denied Plaintiff Donated Sick Bank Days Because She Could not Show a Catastrophic Injury as Defined in the Collective Bargaining Agreement

By on December 18, 2012 in FMLA with 0 Comments

Kelly Queen, plaintiff, worked as a police dispatcher for the City of Bridgeton.  On October 16, 2006, she experienced a racing heartbeat and left work.  Her family doctor referred her to a cardiologist.  He diagnosed her with a mitral valve prolapse condition, which may have been responsible for tachycardia and dyspnea.  She also underwent a cardiovascular stress test.

Plaintiff returned to her family doctor on November 6, 2006.  The doctor recommended no return to work until January 2007. She saw he doctor again on January 4, 2007 and January 25, 2007, and she was cleared to return to work on February 18, 2007.  She never had any similar heart racing during her absence.  She was able to return to work and continue in her job.

During her absence, plaintiff exhausted her 10 sick days as well as her FMLA leave.  She therefore requested access to the City’s donated leave program, referred to as “sick bank.” That policy was negotiated under a collective bargaining agreement in 2003.

The purpose of the sick bank policy was to allow City employees to donate earned sick time and/or vacation time to another City employee who was suffering from a catastrophic health condition or injury expected to require a prolonged absence from work.  The policy provided that the employee seeking access to the sick bank must contact his or her department head, who in turn must require medical documentation concerning the nature, severity and duration of the medical emergency.

Plaintiff submitted notes from her doctor but not actual medical records.  The City therefore denied the request, finding that the condition did not meet the test of a catastrophic event.  Plaintiff filed a grievance, which was settled as follows:

The parties agree to settle the above grievance based upon permitting the grievant to invoke the procedures of Article 7 of the [CBA] without interference relative to donated medical leave if the employee’s treating physician documents a catastrophic health condition or injury as specified in the [CBA].

Plaintiff was given a second chance to provide medical documentation showing a catastrophic health condition but failed to do so.  Instead, she sued alleging disability discrimination under the New Jersey Law Against Discrimination.  She argued that the City failed to make reasonable accommodation to her by not approving her sick bank request.

The City proved that prior recipients of the sick bank had high risk pregnancy that required complete bed rest, Guillain-Barre Syndrome, breast cancer, a stabbing injury and esophageal cancer, and prostate cancer.  One woman had been denied sick bank access who had been recuperating from pregnancy and had high blood pressure.  Two men had been denied sick bank access who suffered from a back condition and from a heart condition. The Court contrasted this case with other suits alleging discrimination based on disability.

Unlike the typical claim, wherein an employee seeks an accommodation that would facilitate her return to work, maintain her employment, or remedy her condition, plaintiff here demands just the opposite, namely a monetary benefit that would permit her continued absence from work, and which defendants have no recognized legal duty to provide.  Indeed, plaintiff never established that she was able to work with or without any accommodation.

As to the sick bank itself, the Court held there was no “blanket mandate” that an employer provide donated sick leave as a matter of right to anyone with a disability.  The Court said that plaintiff failed to show that the City acted arbitrarily in restricting access to the sick bank to those who have catastrophic injuries.  In the end, the Court said that plaintiff simply did not qualify for the sick bank.

This case can be found at Queen v. City of Bridgeton, 2012 N.J. Super. Unpub. LEXIS 2425 (App. Div. October 29, 2012).

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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