Education commissioner recommends districts close loophole in sick leave policies

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(FRANKFORT, KY) – In a memo to 10 superintendents whose districts have experienced school closures due to a high volume of teacher absences since Feb. 28, Kentucky Education Commissioner Wayne Lewis issued guidance and recommendations March 27. Eight districts (Bath, Boyd, Carter, Fayette, Letcher, Madison, Marion and Oldham) closed for one day. Bullitt County closed for three days, and Jefferson County closed for six days. 

After summarizing the findings of his requests to districts regarding the absences, to which all districts complied, Lewis stated that more than 2,000 teachers took advantage of a loophole in state law leading to a work stoppage.

In lieu of recommending that the Kentucky Board of Education promulgate a statewide regulation that closes the loophole, Lewis suggests that districts work on a local basis to address the issue, suggesting the following actions:

  • Teachers desiring to miss work to engage in political advocacy must request and receive approval to use personal leave under KRS 161.154 – not sick leave under KRS 161.155.
  • Teachers requesting sick leave for the purpose of closing the district amounts to an illegal work stoppage. If a district suspects that sick leave has been requested to create a work stoppage, the district will preserve the list of teacher sick leave requests and submit this list to the Secretary of Labor, upon request, for investigation and possible civil penalties pursuant to KRS 336.050, 336.130, 336.985, and 336.990.
  • Teachers found to have falsified sick leave requests will be disciplined by the district up to and including possible termination under 161.790  and/or will be reported by the superintendent to the EPSB pursuant to KRS 161.120.

“These school closures come at a tremendous cost to families, classified district employees, taxpayers, and – most importantly – our children,” said Lewis. “If district closures because of work stoppages continue and districts and local boards are unwilling or unable to address this problem, I will explore further action to do so, including recommending that the labor cabinet issue citations to teachers engaged in illegal work stoppages. At this time, however, I will allow local districts an opportunity to address this issue first.”

In the memo, Lewis pointed out that while teachers have a First Amendment right to engage in political advocacy, they do not have a right to organize a work stoppage by lying about being sick. 

“Teachers can and should use a personal day granted to them by KRS 161.154 or engage in political advocacy outside of work hours,” said Lewis.

Bullitt County, which experienced three missed days due to work stoppages, has created a delegate system that will allow some teachers to participate while keeping schools open.

“I support such efforts, and I encourage additional measures to guard against interruptions to the educational process,” said Lewis.

KRS 336.130 prohibits public employees from engaging in strikes or work stoppages, and Kentucky courts have long recognized that public employees do not have a right to strike. In addition, the statute governing teacher sick leave also makes clear that this leave shall be taken for true illness or care of an ill family member, and requires an affidavit or physician certificate to support claims of illness. 

Teachers engaged in illegal work stoppages can be issued personal citations by the Kentucky Labor Cabinet. KRS 336.990 provides that any person who violates KRS 336.130 “shall for each offense be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).” This fine is issued and enforced by the Secretary of the Labor Cabinet.

“These ‘sick outs’ have impeded students’ academic learning, created tremendous inconveniences for thousands of families, and caused classified staff to lose pay on days their districts closed,” said Lewis. “It’s imperative that students receive classroom instruction without interruption throughout the school year, barring major weather events or illness.”

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