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 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, 2012N.J. Super. Unpub. LEXIS 2425 (App. Div. October 29, 2012).

 

 

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.