Forced unpaid leave may be unlawful discipline

NJ State PBA Legal Corner

By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.

As implementation of mandatory COVID-19 vaccination policies increases, requests for medical and religious exemptions and reasonable accommodations to getting vaccinated also increase. While unpaid leave can be a reasonable accommodation, a recent NJ Civil Commission Service decision sheds light on how unpaid leave can actually be disciplinary and that, under such circumstances, a public employer may not bypass procedural safeguards in imposing such discipline. While this decision directly affects agencies that have adopted civil service, it could also have an impact in non-civil service agencies.

In In the Matters of F.B. et al., Twp. of West Orange, CSC Docket Nos. 2022-1079 et al., the Township of West Orange issued a COVID-19 Vaccination and Testing Policy mandating that all township employees be vaccinated against COVID-19 as a condition of continued employment. Any employee who did not comply with the policy would be granted an unpaid leave until proof of compliance. Non-compliance for more than six months would result in progressive discipline, up to and including termination.

Employees who failed to comply with the policy would be considered to be unfit and unable to perform their duties and subject to disciplinary charges. The policy also provided that an employee may request a reasonable accommodation to getting vaccinated due to a disability or a sincerely held religious belief.

Pursuant to the policy, several township firefighters and fire captains submitted formal exemption requests and asked for reasonable accommodations in the form of regular PCR testing, mask-wearing, social distancing, quarantining if symptomatic, personal hygiene and other reasonable accommodations associated with natural and herd immunity. These requests were denied, and the township’s chief financial officer informed the firefighters and law enforcement officers that the township did not have another open, alternative assignment to appoint them to. As a result, they were placed on involuntary, unpaid leave of absence for failure to comply with the policy.

The employees petitioned the civil service commission for interim relief regarding their involuntary unpaid leave of absence. They argued that they were placed on immediate suspensions without pay in violation of their rights, and that the township failed to comply with civil service law and rules. The employees requested that the civil service commission direct the township to reinstate them immediately with back pay, benefits and other emoluments of employment, and that counsel fees be awarded.

In response, the township argued that the petitioners could not establish any of the factors required to prevail on an application for interim relief, including a clear likelihood of success on the merits and a danger of immediate or irreparable harm. In reply, the employees argued that the township could not “short circuit” the civil service process and must follow detailed notice procedures before it could impose major discipline. Further, an unpaid leave of absence for up to 180 calendar days was not a reasonable form of accommodation, and no other employees were placed on an unpaid leave of absence for any other purpose.

In its decision, the commission focused on whether the employees were subjected to disciplinary action when they were placed on unpaid leave and, if so, whether the township followed the necessary procedural requirements to impose such discipline. The commission found that the township did subject employees to disciplinary action when they placed them on involuntary unpaid leave of absence. In reaching this conclusion, the commission pointed to several factors evidencing the disciplinary and/or punitive nature of the policy.

First, although the policy used the term “granted” with respect to the unpaid leave, “[b]y placing the petitioners on unpaid leave, when none had requested it, the Township effected an involuntary separation from employment, which is the basis of all major disciplinary actions under Civil Service rules.” Second, the language of the policy connected the unpaid leave to noncompliance with township policy. Third, under the policy, noncompliant employees would be deemed unfit and unable to perform their duties, and unfitness for duty is a basis for immediate suspension under civil service rules, while inability to perform duties is a general cause for discipline under civil service rules. Fourth, the policy explicitly prohibited employees from utilizing accrued paid time-off benefits to continue being compensated during the leave of absence. Fifth, “[t]he Policy’s statement that progressive discipline will follow only after six months of non-compliance [did] not render the unpaid leave non-disciplinary where the leave, in this particular case, was itself an adverse action.” Sixth, the language of the policy did not seem to consider the unpaid leave itself to be a reasonable accommodation: “[e]mployees who decide not to become vaccinated who are not entitled to any reasonable accommodations will be granted an unpaid leave of absence[.]” Seventh, the letters from the township’s chief financial officer advised the petitioners that their continued performance of duties while being unvaccinated “creates a public safety risk and health hazard.” This language is similar to that found in N.J.AC. 4A:2-2.5(a)1, which sets forth standards for an immediate suspension. Lastly, the maximum length of the unpaid leave – 180 days – matched the longest suspension that generally may be imposed under civil service law and rules.

Having determined that the employees were subjected to discipline, the commission next found that the township failed to follow any of the procedures necessary before major discipline can be imposed. The commission noted that, although the township sent letters to the petitioners setting forth their appeal rights, the letters were not substitutes for following the disciplinary procedures in the rules, specifically the issuance of PNDAs, holding departmental hearings and the issuance of FNDAs. Accordingly, the commission ordered that the employees receive back pay, benefits, and seniority from Oct. 23, 2021 until the employees were either reinstated to duty, or they were properly immediately suspended without pay or disciplinary action was properly imposed upon issuance of FNDAs, whichever occurred first.

Ultimately, the commission did not question that the township, as the employer, had the right to discipline the employees without pre-judging whether any such discipline would ultimately be upheld. However, the commission emphasized that the appropriate procedures must be followed before major discipline is imposed. Thus, even in situations where employees have been subjected to discipline pursuant to policies that public employers may have the right to implement (including COVID-19-related policies), employers cannot ignore or bypass the rights afforded employees under civil service law and regulations. Importantly, a public employer may not bypass these rights by characterizing what is clearly a disciplinary action as a reasonable or, in this case, an alternative accommodation.

As we noted, this decision directly affects all agencies which have adopted Civil Service. However, it may also have an impact in non-civil service jurisdictions. In certain situations, courts in New Jersey have applied civil service principles in non-civil service jurisdictions. Officers who are placed on involuntary unpaid leaves, whether they are in jurisdictions that have adopted civil service or not, should consult with LPP attorneys to discuss their options.