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Commissioner of Education Finds Teachers are Entitled to Paid Leave Pending a Fitness for Duty Exam

Firm Partner, Colin M. Lynch, and Associate, Sheila Murugan, obtained a Final Decision from the New Jersey Commissioner of Education on November 18, 2021, which reversed a board of education’s finding that it could place a teacher on an involuntary sick leave pending a fitness for duty evaluation finding her fit to

On October 27, 2020, the teacher suffered an alleged physical medical episode in her classroom and emergency medical services was called. The board required the teacher to undergo a fitness for duty evaluation pursuant to N.J.S.A. 18A:16-2(a). This examination was conducted on December 22, 2020 and resulted in the examining physician concluding that the teacher was fit for duty. The District advised the teacher that she was permitted to return to work as of January 14, 2021. For the period of time that the teacher remained out of work she was charged thirty-nine and one-half sick days.

A fitness for duty evaluation may be required of an employee whenever the employee shows evidence of deviation from normal, physical, or mental health. N.J.S.A. 18A:16-2(a). A subsequent statute, N.J.S.A. 18A:16-4, provides that if a tenured employee who underwent a fitness for duty evaluation is unfit to return to work, she may be granted sick leave with compensation as provided by law. Sick leave in New Jersey is defined to mean the absence from one’s post of duty because of personal disability due to illness or injury. N.J.S.A. 18A:30-1.

An appeal was filed with the Commissioner. The matter was then transferred to the Office of Administrative Law. The OAL’s Initial Decision recommended reversal of the Board’s decision because sick leave may only be imposed when a physician determines there is a mental or physical issue precluding job service. The decision noted that boards of education do not have the expertise to question the teacher on medical issues but must rely on a physician’s expertise. In other words, it cannot substitute its judgment for that of a physician. Further, simply having a medical condition or being subject to an isolated medical incident does not make an individual too ill or disabled to work beyond that incident. Finally, the decision provided that use of sick days was inappropriate because the statute does not authorize a board to determine whether a teacher is sick or disabled and, in this instance, no physician concluded she was unfit to teach.

The Commissioner of Education adopted the OAL’s Initial Decision. The Commissioner held that a board of education may place a tenured teacher on involuntary sick leave only after an examination indicates “mental abnormality or communicable disease.” Additionally, it cannot require use of sick leave without medical justification. Unless and until a medical professional declared the teacher unable to work, there was no medical justification for her sick leave, and therefore she was not required to use her sick days. The teacher was entitled to a paid leave of absence until such time she was permitted to return to work. Therefore, the board was ordered to reinstate all sick days charged.

This decision confirms that tenured teachers are entitled to protection of their sick days in the absence of a finding they are unfit for duty and firmly clarifies a previously unsettled area of law. Should a board require that a tenured teacher remain out of work until a fitness for duty examination is conducted, and afterward until she is permitted back to work after being found fit for duty, the teacher is entitled to a paid leave of absence. The decision may be located at Commissioner of Education, Docket No. 233-11/20.

Should you have questions regarding this case, educator fitness for duty evaluations and/or use of sick leave, among other School Law topics, the Zazzali Firm is more than happy to assist you.


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