Questions related to employee leave for reasons of personal illness or injury are some of the more confusing legal issues that school districts regularly face.  Set forth below is a summary of the legal principles governing such employee leave to assist school officials in navigating through the maze of state and federal rules and regulations related to leave. 

Depending on the circumstances of a particular situation, employees who become injured or ill may be entitled to four kinds of leave.   First, under S.C. Code § 59-1-400, all full-time employees of a school district accrue one and one-fourth days of sick leave for each month of active service, or 12 days for each nine months of active service.  Sick leave which is accrued but not used may be accumulated up to 90 days pursuant to State law.  

Second, an employee who is injured in the course of employment may be eligible for leave under the Workers' Compensation laws.  An employee who is injured on the job has the option of electing to use either all or a specified portion of their accrued leave time or Workers' Compensation benefits.  The election of the employee is irrevocable as to each incident.  If an employee elects to use accrued leave time, and that time is exhausted, the employee then is entitled to Workers' Compensation benefits.  As a practical matter, there generally is no limit on the amount of time that an employee may remain on leave related to an approved Workers' Compensation claim.

Third, under the federal Family Medical Leave Act (FMLA), an eligible employee qualifies for 12 weeks of unpaid leave during any 12-month period.  While the FMLA provides that such leave may be unpaid, if the employee has any accrued paid leave available, the employee may elect, or the employer may require, that such paid leave be used during the FMLA leave period.  An employee who is on Worker' Compensation leave also may be eligible for FMLA leave, if the work-related injury also constitutes a “serious health condition” under the FMLA.  An employer is permitted to count time that an employee is on Workers' Compensation leave toward that employee's 12-week entitlement under the FMLA, provided that the employer timely designates the leave as FMLA leave. 

Finally, pursuant to the Americans with Disabilities Act (ADA), an employee who has become “disabled” under the ADA may request an extension of unpaid leave after their FMLA leave expires as a reasonable accommodation.  Whether and to what extent such additional leave time is a “reasonable” accommodation must be determined on a case-by-case basis taking into consideration the employee's job duties and the amount of additional leave being requested.  

These various laws stipulate only the minimum leave to which public school employees may be entitled; school districts are not prohibited from adopting policies granting more liberal leave benefits to employees.  However, such policies should be developed with caution, because they may create legal conflicts and potential liability.  For example, sick leave bank policies may be problematic because although school officials may view the granting of leave days from the bank as discretionary, employees may argue that they have a contractual right to the bank's benefits.  Moreover, such policies may be difficult to administer consistently, given the challenge of defining and implementing terms like “catastrophic illness.”

To shield districts from liability for leave claims, school officials must keep in mind both the beginning and end of an employee's leave.  In other words, the leave must be properly designated when it commences, and must be properly terminated when it expires.  On the front end, districts may choose to limit employees' use of leave days granted under S.C. Code § 59-1-400 for reasons other than personal illness or injury. Board policy should specifically delineate the circumstances under which an employee's use of such leave days will be approved. 

Employees requesting FMLA leave should be required to submit medical certification of the relevant serious health condition necessitating the leave, and should be timely informed in writing whenever a leave period is designated as FMLA leave.  A district's failure to timely designate leave as being pursuant to the FMLA may result in an employee having access to additional days of FMLA leave that they otherwise would not have available.  To prevent potential abuses of FMLA leave, districts should provide a list of an employee's primary job responsibilities when requesting medical certification of a serious health condition, and ask the certifying physician to designate whether the employee is capable of performing those responsibilities in light of the employee's current medical condition.  Employees requesting leave beyond their FMLA leave entitlement should be required to submit medical documentation of their disability, and an explanation why additional leave is a reasonable accommodation. 

Concerning issues which can surface when an employee's leave ends, state law provides that an employee using accrued sick leave may not be terminated from employment during a continuing sick leave of less than 91 days.  In the same vein, while it is permissible to dock an employee a leave day for improper use of leave, or for not following school policy when taking leave, docking an employee's salary for such violations is discouraged, as doing so could subject a district to liability under the South Carolina Payment of Wages Act.  On the other hand, if a public school employee with a long-term illness has been out for 91 days, and the employee is not approved for additional leave at the end of that period, the employee in most cases may be terminated.

Ultimately, the key to preventing liability for decisions related to employee leave is to remember that numerous state and federal laws may intersect; to thoroughly review and follow the requirements of these various laws and school board policy; and to communicate clearly to employees the district's rules and expectations regarding leave.