Memo 7:

Sick Leave For Public School Employees; Statutory Provisions

The Education Code provides school employees with generous sick leave entitlements. Unfortunately, the law is often almost incomprehensible. Sick leave practices vary from district to district and there is very little case law to clarify points of confusion. In addition, collective bargaining agreements and local district policies and practices may offer benefits that are more generous than the statutes require. And in some cases, those local modifications conflict with statutory provisions.

The following is a basic description of sick leave entitlements for classified and certificated employees, based on the Education Code. Copies of the relevant code sections are included at the end of this discussion.

I. Regular Sick Leave (Education Code section 45192)

    • 12 days of leave are granted annually (or more if permitted by the district) for 12-month employees.

    • Annual sick leave is prorated on the basis of months worked per year (example: 10 days for 10-month employee).

    • Annual sick leave is prorated on the basis of days worked per week (example: for 3 days per week, 3/5 of 12 or 10 days).

    • Unused sick leave accumulates from year to year.

    • Leave may be taken before earned. However, new classified employees may not take more than six days sick leave until the start of seventh month.

II. Extended Sick Leave (Education Code section 45196)

For Any Reason (Industrial and Non-industrial)

    • For five consecutive calendar months, beginning with first date of absence:

    • The amount deducted from pay shall not exceed the amount actually paid a substitute. If no substitute is employed, no deduction is permitted.

    • If no substitute salary schedule is adopted, the amount paid the substitute shall be less than the absent employee’s salary.

    • Comment: The five months of what is commonly known as “differential pay” is a period of five consecutive months. It is not a number of available days of leave. Districts commonly refer to “100 days” but this term is confusing and should be used only by districts that adopt the alternative 100 days at half pay option described below. • The employee gets only one five-month period per school year. If the same illness continues into the following school year (or recurs during the following school year), the employee gets a new 5-month period in the new school year.

Alternative 100 Day, Half-Pay Method:

    • This alternative must be adopted by board policy or bargaining agreement.

    • The employee gets (at least) 100 working days of sick leave each year. Note the difference between 100 days and five months. Five months refers to a block of time on a calendar rather than a number of days of leave. By contrast, 100 days refers to the number of days of absence, regardless of how many months it takes to use up that number.

    • The first day of absence is charged against the 100 days. All annual and accumulated sick leave days are used to provide full pay. After sick leave is exhausted, the employee receives (at least) half pay for the remainder of the 100 days.

    • The half pay days are “exclusive of any other paid leave, holidays, vacation, or compensating time to which the employee may be entitled.” “Other paid leave” means leave other than sick leave. Once the employee has used all available sick leave and is in half pay status, he has the option of using vacation or comp time to supplement the half pay, on an hour-for-hour basis.

II. Industrial Illness and Accident Leave (Education Code section 45192)
    • The board must provide a specified number of days (minimum 60) in policy or bargaining agreement, which may provide that employees must serve continuously up to three years before being entitled to this type of leave. However, if the district has failed to adopt such a policy or bargaining agreement, there is no limit on the number of days and no minimum service requirement.

    • There is a minimum of 60 working days per school year for the same illness or accident. Separate industrial illnesses or accidents entitle the employee to a new 60 days. However, if the 60 days overlap into the next school year, only the remainder is carried forward for the “same illness or injury.”

    • Industrial leave does not accumulate from year to year.

    • For classified employees, industrial leave starts on first day of absence.

    • Pay for wages lost due to absence, when added to any workers’ compensation award, shall not exceed the normal daily wage.

    • Industrial leave is reduced by one day for each day of absence (not prorated for partial-day absences).

    • Absence for industrial illness or accident is not a break in service (for example, to acquire permanent status).

    • When all other leaves have been exhausted, the employee may be granted additional leave, paid or unpaid. The employee must be given written notice of the right to apply.

    • If this additional leave is granted, the employee must be returned to “a position within the class” to which he was assigned, at any time that he is able to resume those duties.

    • If no additional leave is granted, or the employee is unable to return to work when the leaves have been exhausted, he is placed on a reemployment list for 39 months. If he is able to return to work during that period, he shall be reemployed in the first vacancy in his class. He has preference over all other applicants except employees who are rehired from a layoff list.

    • If the 39-month period expires without rehire, the employee has no further right to employment and may be considered terminated without further action.

III. Additional Leave After Exhaustion of Benefits (Education Code section 45195) • When all other leaves have been exhausted, the employee may (apply for and) be granted additional leave, paid or unpaid, not to exceed six months. The employee must be given written notice of the right to apply. If this leave is granted, the board may renew for two additional periods of up to six months each.

• If this additional leave is granted, the employee must be returned to “a position within the class” to which he was assigned, at any time that he is able to resume those duties.

• If no additional leave is granted, or the employee is unable to return to work when the leaves have been exhausted, he is placed on a reemployment list for 39 months. If he is able to return to work during that period, he shall be reemployed in the first vacancy in his class. He has preference over all other applicants except employees who are rehired from a layoff list.

• If the 39-month period expires without rehire, the employee has no further right to employment and may be considered terminated without further action.

IV. Employees Receiving Temporary Disability Benefits (TD) (Education Code section 44043)

    • Employees who are temporarily disabled due to a work-related injury receive temporary disability (TD) payments under the Labor Code.

    • An employee receiving TD is only entitled to as much salary or wages as, when added to TD, equals a full day’s pay.

    • If TD is paid directly to the employee, he must endorse the check over to the district and will then receive full pay from the district, with deductions from available leave as indicated above. In many cases, TD is paid to the employer, who provides full pay to the employee and makes appropriate deductions from available leave.

    • When sick leave, vacation, comp time or other available paid leave (other than Industrial Accident leave) are combined with TD, this leave “shall be reduced only in that amount necessary to provide a full day’s wage or salary when added to the temporary disability benefits.”

Comment: When the employee is on Industrial Accident leave (minimum 60 days), the employee must endorse TD payments to the district (or TD is paid directly to the district by the insurer, such as SISC) and a full day of industrial leave is deducted, even for a partial day of absence. When industrial leave has been exhausted, and the district receives the TD payment (directly or by endorsement), the amount of accumulated sick leave or other leave to be deducted for each day of absence for which the employee receives TD is only enough to produce a full day’s pay.

I. Regular Sick Leave (Education Code section 44978)

    • Ten days of leave are granted annually (or more if permitted by the district) for employees working five days per week.

    • Annual sick leave is prorated on the basis of days worked per week (example: Three days per week, 3/5 of 10 days).

    • Unused sick leave accumulates from year to year.

II. Extended Sick Leave (Education Code section 44977 as amended, effective January 1, 1999)

For Any Reason (Industrial or Nonindustrial)

    • The employee first uses all annual and accumulated sick leave.

    • For an additional five-school month period:

    • The amount deducted from pay shall not exceed the amount actually paid a substitute or, if no substitute is employed, the amount that would have been paid a substitute.

    • If no substitute salary schedule is adopted, the amount paid the substitute shall be less than the absent employee’s salary.

    • The district shall make every reasonable effort to secure the services of a substitute.

    • There is only one five-school month period per illness or accident. If the five-month period overlaps into the next fiscal year, only the remainder is carried forward.

    • If the absence extends beyond the additional five-school month period, the amount deducted shall be determined in accordance with board policy or bargaining agreement. It may be provided that there will be full pay deduction (that is, no pay for the absent employee).

    • Comment: Unlike classified employees who receive “five months” of differential pay, certificated employees receive “5 school months” of pay. The term “school month” is not defined in the leave statutes but is defined as a four-week period for ADA accounting (Education Code section 37201). If district past practice has been to use five calendar months rather than five school months for computing certificated differential pay, we recommend that you continue this practice. Use of school months rather than calendar months may result in a shorter block of available leave time than for classified employees.

    As is the case for classified employees, the five months/school months is a block of time and not a number of days of leave. Districts commonly refer to “100 days” but this term is applicable only to classified employees in districts that have adopted the alternative 100 days at half pay option described above. For certificated employees, there is no “100 day” concept (unless it appears in local policy or a bargaining agreement). Instead, there is an alternative to the five months of differential pay for districts that have adopted the five-school months (again, note the use of school months for certificated) alternative described below.

III. Alternative Five-School Month, Half-Pay Method (Education Code section 44983)

    • This alternative must be adopted by board policy or bargaining agreement.

    • For certificated employees, this rule applies to five “school months” rather than the 100-day alternative available to classified employees.

    • The employee receives not less than 50 percent of his regular pay.

Comment: Since Education Code section 44983 provides that Education Code section 44977 (sub-deduct differential pay) does not apply when this 50 percent method is adopted, we conclude that these 5 school months can begin as soon as the absence begins and not after exhaustion of accumulated sick leave. Note, however, that only the five-month differential term is affected, not the 60 days of industrial accident leave under Education Code section 44984. This means that the five-school months of half pay begin on day 61 of an industrial absence, and the employee may use accumulated sick leave to receive full pay. If accumulated sick leave does not cover the entire five-school month period beginning on day 61, the balance should be compensated using the 50 percent method.

IV. Industrial Illness and Accident Leave (Education Code section 44984)

    • The board must provide for a minimum of 60 days in policy or bargaining agreement.

    • A minimum 60 working days is available per fiscal year for the same illness or accident. However, if the district has failed to adopt a policy or bargaining agreement specifying the 60 days, there is no 60-day limit.

    • Industrial leave does not accumulate from year to year.

    • For certificated employees, industrial leave starts on the first day of absence after exhaustion of the annual allotment of 10 sick leave days. For certificated employees, the 5-month differential period does not begin until industrial leave has been exhausted.

    • Pay for wages lost due to absence, when added to any workers’ compensation award, shall not exceed the normal daily wage.

    • Industrial leave is reduced by one day for each day of absence.

    • If the 60 days overlap into the next fiscal year, only the remainder is carried forward for the “same illness or injury.”

    • After a 60-day leave is exhausted, the employee is entitled to the benefits of annual and accumulated sick leave (Education Code section 44978) and either five-school month’s differential pay (Education Code section 44977) or five-school months at half-pay (Education Code section 44983).

    • For purposes of these additional benefits, the absence is deemed to have started at the end of the 60-day period.

    • In light of the amendment to Education Code section 44977 effective January 1, 1999, this means that after the 60 days, the employee uses his annual and accumulated sick leave and then begins the five-school month differential period.

Comment: Although Education Code section 44984 says that the five-month period begins immediately after the 60 days, the amendment to Education Code section 44977 (now, subsection (a)) provides that the five-school months are in addition to annual and accumulated leave. Since annual and accumulated leave is not charged against the employee during the 60 days of industrial accident leave, the result is that part of Education Code section 44984 is effectively superceded by newer and more specific language.
    • If the employee is receiving temporary disability (TD), he may elect to use as much available sick leave as, when added to TD, equals a full day’s pay.

    • When available sick leave has been exhausted and the employee is not medically able to return to work, he is placed on a reemployment list for 24 months (if probationary) or 39 months (if permanent). If he is able to return to work during that period, he shall be returned to work in a position for which he is credentialed and qualified. Although the law does not specify what happens if this period expires before the employee may return, we believe he may be deemed to be terminated.

    Note that, unlike classified employees who are returned from a 39-month reemployment list only if a vacancy exists, certificated employees are returned from a 24/39-month reemployment list whenever they are medically able to return, and the district must find a position for them. It does not have to be the same position which they held when they went on leave.

V. Employees Receiving Temporary Disability Benefits (TD) (Education Code section 44043)

    • Employees who are temporarily disabled due to a work-related injury receive temporary disability (TD) payments under the Labor Code.

    • An employee receiving TD is only entitled to as much salary or wages as, when added to TD, equals a full day’s pay.

    • If TD is paid directly to the employee, he must endorse the check over to the district


Print This Page   Email This Page