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Have a sick leave bank? Make it accessible to all who qualify

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in Employment Law,FMLA Guidelines,Human Resources

If, like many employers, you maintain a sick leave bank for employees who exhaust their available leave time, remember this: You’ll risk a retaliation lawsuit if you deny the use of banked time to an employee who has filed a discrimination claim.

As a recent case out of New York shows, this is the sort of employer action that might dissuade a reasonable employee from bringing a discrimination complaint.

Recent case: Mary Casale was a teacher for the City School District of Troy until she became disabled and could no longer work. However, before she took an extended sick leave, she reported alleged sexual misconduct on the part of another teacher to the authorities.

Casale took all her accumulated sick leave when she became disabled, and remained on the payroll for a full year. Then she asked the school board to approve more leave, requesting that she be allowed to draw time from the district’s sick leave bank. The bank allowed employees to contribute three days of sick leave for other employees to use if they needed more sick leave than they had accumulated.

The board members denied her application. She then learned that it was the first time anyone had been turned down. That’s when she sued, claiming the board had retaliated against her for previously reporting the sexual misconduct.

The court took Casale’s side. It said being turned down for additional sick time would probably have an adverse impact on an employee who needed more time off. Therefore, a reasonable employee might very well be dissuaded from participating in any future investigations. That’s a main reason why retaliation is illegal. The court allowed the case to go forward. (Casale v. Reo, et al., No. 1:04-CV-1013, ND NY, 2007)

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