The Vermont Supreme Court has sided with the state employees union in a case over paid leave, ruling that the state can’t cap the number of accrued sick days workers use when they’re out because of a serious injury or illness.
The case stems from a grievance filed by a now-retired Agency of Transportation surveyor, Kobe Kelley, with the Vermont Labor Relations Board. But it could affect many more: Anywhere between 50 and 100 state employees have similar grievances pending before the labor board, the VSEA told the court, according to the decision.
At issue was whether or not the state could require employees taking long-term leave to begin using accrued time off other than sick days – including vacation days – after a six-week cut-off. Kobe, who took a seven-week leave after fracturing his knee, was told he could not use his accrued sick days past the first six weeks, and needed to use his “annual leave” for the remaining week of his time off.
“I know three people who had strokes who had their vacation taken away from them,” said VSEA President Dave Bellini. “What kind of boss does this?”
Though both sick days and annual leave are compensated, their use has different implications when employees leave their jobs or retire. Accrued sick days that an employee doesn’t use before leaving are not paid out; other types of paid leave are.
The attorney general’s office referred comment to John Berard, the director of labor relations at the state’s Department of Human Resources. Berard did not reply to a request for comment left Tuesday afternoon.
The case turned on how to interpret two articles in the contract covering unionized executive branch employees. The first, Article 31, allows an employee “who cannot work due to illness or injury” to use “earned sick leave credits.” It has been in place in contracts between the state and the VSEA since the 1970s, and it does not limit how credits can be used, according to the decision.
The second, Article 35, was added in 1999 in response to Vermont’s 1989 Parental and Family Leave Act and its 1994 federal counterpart, the Family Medical Leave Act. It provides that family leave will be granted “in the case of serious illness of an employee or of a member of the employee’s immediate family.” Family leave is, as a default, unpaid, but employees may choose to simultaneously use up to six weeks of any accrued leave, including sick leave. After six weeks, however, “employees may use only the following accrued paid leaves in the following order: compensatory time, personal time, and annual leave.”
The state argued that the six-week cut-off for sick leave applied in all cases of serious illness – including when an employee took time off for their own injury or illness, and not just a family member’s.
But the union argued – and the court unanimously agreed – that the limitation on sick leave didn’t apply when an employee was taking time off specifically for their own serious injury or illness.
The judges found that the contract itself was ambiguous. But they argued that evidence from bargaining suggested the parties never intended to limit what was before then an unrestricted right.
“The State’s position moreover has the strange result that the right of employees to use sick leave credits is more restricted when they are suffering from a serious illness, when they may need to use their sick leave the most, than a minor one,” Supreme Court Associate Justice Harold Eaton wrote for the court.
