Avoid an Unfair Practice Charge – What Districts Should Know About Statutory Leave, Benefits, and Collective Bargaining

The Public Employee Relations Commission (“PERC”) recently decided an unfair practice charge related to FMLA and NJFLA that all school districts should be aware of and keep in mind when it comes to collective bargaining. Cedar Grove Twp. Bd. of Educ. v. Cedar Grove Educ. Assoc., PERC No. 2025-15 (Oct. 24, 2024). This is what districts need to know about these leave benefits and how they should be dealt with during negotiations.

The Cedar Grove Education Association (“Association”) filed an unfair practice charge against the Cedar Grove Board of Education (the “Board”) for requiring employees to utilize FMLA, NJFLA, and sick time concurrently instead of consecutively. This meant the Board would require the employee to begin FMLA leave as soon as they were notified of a qualified leave. To remain paid, the employee would have to utilize sick time at the same time they were on FMLA leave. This would therefore shorten the amount of time the employee could remain on leave with benefits and job protection.

The governing Collective Bargaining Agreement (“CBA”) was silent on whether employees could utilize these benefits consecutively or concurrently. However, there was a past practice whereby Association members were permitted to utilize accumulated paid sick leave prior to utilizing leave under the FMLA and/or the NJFLA. Meaning, employees were able to exhaust their sick leave and remain out with pay, then once exhausted, were allowed to begin FMLA or NJFLA leave unpaid, but with job protection and benefits through the end of the specified statutory period.

The Public Employee Relations Commission (“PERC”) found these issues, whether statutory leave periods and paid benefits could run consecutively or concurrently, were contractually negotiable. PERC therefore found that the Board violated the New Jersey Public Employer-Employee Relations Act when it unilaterally required employees to use sick leave and FMLA leave concurrently.

PERC noted it is “well-settled” that sick leave and other leaves of absence are mandatorily negotiable except where preempted by statute or regulation. It also noted the implementation of a policy requiring employees to use paid leave concurrently with federal and/or state statutory family and medical leave, in addition to the specific sequence in which paid leave must be used, are mandatorily negotiable. PERC disagreed with the Board that the leaves of absence were preempted by federal regulation. PERC found the language of the regulations did not expressly remove an employer’s discretion to agree to have paid leave and FMLA leave run consecutively instead of concurrently.

Negotiating leave provisions is an important part of the negotiations process when it comes to Collective Bargaining. Districts should understand the concessions they make when they agree to allow leave to run consecutively and the added benefits for a district when the parties agree for leave to run concurrently. Regardless of the outcome, districts must understand where a CBA is silent on this issue, they cannot unilaterally decide whether educators can take leave under the FMLA, NJFLA, and using their paid sick leave consecutively or concurrently. It must be negotiated. Districts should ensure this is clearly outlined in a CBA so that educators and districts alike know the proper procedures for utilizing leave time, to prevent confusion when an educator requests leave, and to avoid an unfair practice charge.

For more information on this decision and how it impacts your school district, please contact our office.