P.E.R.C. No. 2025-33, E Greenwich B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of EAST GREENWICH BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2024-076 EAST GREENWICH EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the East Greenwich Board of Education’s motion for summary judgment on an unfair practice charge filed by the East Greenwich Education Association, alleging the Board violated the Act when it unilaterally implemented a new sick leave verification policy without negotiating with the Association. The Commission finds summary judgment is precluded by disputed issues of material fact as to whether the parties engaged in such negotiations or reached agreement. The Commission also finds that the 2023 amendments to the school sick leave laws do not preempt negotiations over the policy’s documentation and notice provisions. The Commission further finds that, as these issues largely concern negotiable procedural aspects of verification, such negotiation would not significantly interfere with the Board’s managerial prerogative to determine educational policy in the absence of a record of sick leave abuse. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of EAST GREENWICH BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2024-076 EAST GREENWICH EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Weiner Law Group LLP, attorneys (Stephen J. Edelstein, of counsel) ¶

For the Charging Party, Selikoff & Cohen, PA, attorneys (Keith Waldman, of counsel; Daniel R. Dowdy, on the brief) ¶

DECISION ¶

In this matter we consider a motion for summary judgment filed on December 2, 2024, by the Respondent, East Greenwich Board of Education (Board), seeking an order dismissing an unfair practice charge filed on November 29, 2023, by the Charging Party, East Greenwich Education Association (Association or EGEA). The charge alleges the Board violated sections 5.4a(1) and (5)1/ of the New Jersey Public Employer-Employee Relations Act, N.J.S.A. 34:13A-5.1, et seq. (Act), when it unilaterally implemented new sick leave policies (regarding employees’ use of sick leave, designation of sick leave, required documentation, foreseeability of sick leave, and sick leave blackout dates) without negotiating with the Association.2/ ¶

A Commission Staff Agent held an exploratory conference with the parties on February 9, 2024. On February 15, the Deputy Director of Unfair Practices issued a complaint and notice of hearing on the charge and assigned a Hearing Examiner. A pre- hearing conference occurred on March 12, at which an April 22 deadline was set for the Board to file a motion for summary judgment.3/ Processing of the complaint was placed on hold pending the Board’s motion. On January 28, 2025, the Chair referred the motion to the Commission. ¶

The Board’s motion is supported by a brief and the certification of its counsel4/ with attached exhibits. The Association filed an opposing brief, the certification of its President, Collin Aregood, and an exhibit. The Board subsequently requested and was granted permission to file a reply brief, to which the Association was permitted to file a sur- reply. ¶

Summary of Facts ¶

The Board is a public employer within the meaning of the Act. The Association is the majority representative of all regularly employed, non-administrative, non-supervisory and non- confidential certificated Board employees, as well as support staff employed by the Board as aides, food service employees, and custodial position classifications. The Board and Association are parties to a collective negotiations agreement (CNA) in effect from July 1, 2023, through June 30, 2028. ¶

Article 16 of the CNA governs Sick Leave and Family Illness Leave and states, in relevant part: ¶

Sick leave is defined to mean the absence from an employee’s post of duty because of personal disability due to illness or injury, or because the employee has been excluded from school by the school district’s medical authorities on account of a contagious disease or of being quarantined for such a disease in the employee’s immediate household. Doctor appointments for routine medical or dental examinations shall not be considered a personal illness. ¶

. . . ¶

D. The administrator has the right to require a doctor’s certificate for any teacher who is absent due to personal illness or injury. ¶

The CNA also contains negotiated provisions governing bereavement leave, at Article 6A, and personal leave, at Article 6B. The latter includes an advance notice requirement, bans the non- emergent use of personal leave on certain days, and limits pre- holiday/recess use of personal leave to five staff members, granted on a first-come, first served basis. ¶

On July 3, 2023, New Jersey Public Law 2023, Chapter 95, became effective, amending N.J.S.A. 18A:30-1 and N.J.S.A. 18A:30- 4, and expanding the scope of allowable uses of sick leave for New Jersey school district employees. Beyond the two uses for sick leave previously allowed (for the employee’s own personal illness or injury; or because of exclusion from school due to contagious disease exposure or quarantine), the 2023 amendments introduced new categories of permissible uses of sick leave, including: ¶

· for diagnosis, care, treatment, or recovery from a mental or physical illness, injury or other adverse health condition, or preventive medical care, for the employee personally or in aid of an employee’s family member ¶

· to obtain relevant medical attention, victim agency services, counseling, relocation, or legal services for the employee personally or in aid of an employee’s family member, if either are a victim of domestic or sexual violence ¶

· for the death of an employee’s family member for up to seven days ¶

· to attend an employee’s child’s school-related function or other event ¶

· when the school or place of care of an employee’s child is closed due to an epidemic or other public health emergency ¶

The 2023 amendments state that employers “may” require “reasonable documentation” from employees who request sick leave, and “may” require up to seven days’ advance notice if the need for leave is foreseeable. They also state that employers “may” prohibit employees from using foreseeable sick leave on certain (unspecified) dates and require reasonable documentation of non- foreseeable sick leave used during those dates. The specific provisions of these statutes, and their accompanying legislative statement, are further detailed and discussed, infra. ¶

It is undisputed that the new sick leave law was a topic of discussion at an October 2, 2023, meeting attended by the Board’s Superintendent, Andrea Evans, Aregood and the Association’s Executive Board. At this meeting, Evans circulated a reference sheet and a “proposed letter to district staff” regarding the amendments to the sick leave law. (Board Exhibits C and D.) The proposed letter stated, in pertinent part: ¶

The purpose of this letter is to share the new law’s definitions, explain the difference between foreseeable sick leave and non- foreseeable sick leave implementation in our district, and indicate the district’s documentation requirements for sick leave. ¶

. . . ¶

Foreseeable Sick Leave ¶

When an employee has advance notice of an event, such as a parent conference or a follow up doctor’s appointment, this type of sick leave is considered foreseeable. If an employee’s need to use sick leave is foreseeable, advance notice is required (7) calendar days prior to the date the leave begins. ¶

The new law indicates the employee shall make a reasonable effort to schedule sick leave in a way which does not unduly disrupt the operations of the Board. ¶

For this reason, the district is establishing the following parameters. Foreseeable sick leave is not permitted on the day before or immediately following a recess period or holiday pursuant to the district calendar. If sick leave that is not foreseeable is used the day before or immediately following a recess period, a physician’s certificate will be required. If the reason for the leave is not foreseeable, the Board of Education requires an employee to give notice of the intention as soon as practicable. ¶

[(Board Exhibit D.)] ¶

The Board’s letter then sets forth “Documentation Requirements” for the eight types of sick leave allowed by the 2023 amendments to the school sick leave law. These largely track the “reasonable documentation” examples provided in the amendments (see infra).5/ The Board’s letter also specifies “absence codes,” corresponding to each of the eight types of sick leave, that employees must use when recording their absences. ¶

The Board contends in its statement of facts that at the October 2 meeting: the parties “reviewed and discussed both documents extensively” ; the Association “was given an opportunity to provide feedback, request clarification, and/or suggest revisions” ; “the Association had nothing but positive feedback” and “expressed full agreement with the contents of the documents” ; Aregood said no additional time was needed to review them; and the Association suggested the documents be sent to district staff the following day. These assertions are not supported by a certification or affidavit from any Board representative based upon personal knowledge of the meeting. The Association disputes them. ¶

Aregood certifies that at the October 2 meeting Evans “led the EGEA Executive Board to believe that the Board would engage in ongoing discussions over the implementation of any new sick leave policies based on feedback from EGEA leadership and members.” Aregood certifies that “at no time” before or during the October 2 meeting was the EGEA Executive Board “informed that the meeting was to involve actual negotiations or that any policy would be finalized as a result of that meeting.” Aregood also denies that he or anyone on the Executive Board ever expressed “full agreement” with either the contents of the Board’s documents or its implementation of new sick leave policies. Aregood further certifies that during the October 2 meeting the Association never waived its right to engage in negotiations over the implementation or application of any sick leave policies. Aregood also certifies that the Board’s counsel was not present and does not have personal knowledge of what was said at the October 2 meeting. ¶

It is undisputed that on October 3, 2023, the Board sent the letter (Board Exhibit D) to all district staff. The Board asserts in its statement of facts that prior to doing so Evans phoned Aregood “and confirmed that he was comfortable with the documents being sent.” This assertion is not supported by a certification or affidavit from Evans, or any Board exhibit. Aregood’s certification does not specifically address it. ¶

On October 9, 2023, Christina Spadea, a member of the EGEA’s Executive Board, emailed Superintendent Evans the Association’s position that the application of the Board’s sick leave policy was negotiable with respect to blackout dates, leave documentation requirements, notice requirements, and the designation of a reason for requested leave in the Board’s absence tracking systems. On October 16, Evans replied that while she did “not believe that any of these items are negotiable, if they are negotiable, they were already agreed upon” by the Association at the October 2nd meeting. On October 27, Aregood emailed Evans, stating the Association did not agree with the content of the policies the District implemented on October 3, and requested negotiation. ¶

As of the filing of its charge on November 29, 2023, the Association alleges it received no response from the Board to Aregood’s demand to negotiate. ¶

Arguments of the Parties ¶

The Board argues its decision to adopt all documentation requirements for the use of sick leave that became permissible in 2023 was an exercise of its managerial prerogative to control the abuse of sick leave. The Board argues its interest in preventing the abuse of sick leave outweighs the Association’s interest in negotiating, because of the policy’s limited, de minimus impact on employees’ work and welfare. The Board also stresses that the amended sick leave law now allows the use of sick leave for reasons that would have previously been deemed a “personal day.” ¶

The Board further argues that even though it was exercising a managerial prerogative over which it had no duty to negotiate, for all practical purposes it did so by engaging in a collaborative process with the Association and attempting to obtain its review and feedback. As such, it argues, there is no evidence of bad faith on the Board’s part. ¶

The Association argues summary judgment should be denied because employees’ use of leave, including paid and unpaid sick leave, is a mandatorily negotiable term and condition of employment, and the Association materially disputes the Board’s unsupported factual assertions that the parties negotiated over or agreed upon the new sick leave policies. ¶

The Association concedes that whether a doctor’s note can be required when a teacher uses sick leave for their own illness or injury is not at issue here because that is already addressed in the parties’ current CNA. But it argues the CNA and the amended sick leave laws do not foreclose or preempt negotiations over sick leave verification requirements for the newly added purposes as detailed in the amended law. ¶

The Summary Judgment Standard ¶

Summary judgment will be granted if there are no material facts in dispute and the movant is entitled to relief as a matter of law. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73-75 (1954). N.J.A.C. 19:14-4.8(e) provides: ¶

If it appears from the pleadings, together with the briefs, affidavits and other documents filed that there exists no genuine issue of material fact and that the movant or cross-movant is entitled to its requested relief as a matter of law, the motion or cross-motion for summary judgment may be granted and the requested relief may be ordered. ¶

In determining whether there exists a “genuine issue” of material fact that precludes summary judgment, we must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.” Brill, 142 N.J. at 540. We “must grant all the favorable inferences to the non-movant.” Id. at 536. Certifications for or against summary judgment must be based on personal knowledge. Mercer County Sheriff’s Office, P.E.R.C. No. 2017-2, 43 NJPER 65 (¶16 2016). See also, El-Sioufi v. St. Peter’s Univ. Hosp., 382 N.J. Super. 145, 164 (App. Div. 2005) (motions for summary judgment “must be supported by relevant and admissible evidence” ); Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 599, 600 (App. Div. 2011) (documents submitted in support of a motion must be authenticated by affidavit or certification based on personal knowledge). A motion for summary judgment should be granted with extreme caution and may not be substituted for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 183, 185 (App. Div. 1981), certif. denied, 87 N.J. 388 (1981). Summary judgment “should be denied unless the right thereto appears so clearly as to leave no room for controversy.” Saldana v. DeMedio, 275 N.J. Super. 488, 495 (App. Div. 1995). ¶

Duty to Negotiate ¶

N.J.S.A. 34:13A-5.4a(5) makes it an unfair practice for an employer, its representatives, or agents not to negotiate in good faith with a majority representative concerning terms and conditions of employment of employees in that unit. Public employers are also prohibited from “[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act.” N.J.S.A. 34:13A-5.4a(1). This provision will be violated derivatively when an employer violates another unfair practice provision. Lakehurst Bd. of Ed., P.E.R.C. No. 2004-74, 30 NJPER 186 (¶69 2004). ¶

Public employers have an unconditional duty to negotiate “[p]roposed new rules or modifications of existing rules governing working conditions . . . with the majority representative before they are established.” N.J.S.A. 34:13A- 5.3. (Emphasis added). When an “agreement is reached” on terms and conditions of employment, it “shall be embodied in writing and signed by the authorized representatives of the public employer and the majority representative.” Id. “[E]mployers are barred from ‘unilaterally altering . . . mandatory bargaining topics, whether established by expired contract or by past practice, without first bargaining to impasse.’” County. of Atlantic, 230 N.J. 237, 252 (2017), quoting Bd. of Educ. v. Neptune Twp. Educ. Ass’n, 144 N.J. 16, 22 (1996); accord Galloway Twp. Bd. of Educ. v. Galloway Twp. Educ. Ass’n, 78 N.J. 25, 48 (1978). When a subject is mandatorily negotiable, a public employer is affirmatively obligated to seek negotiations before making any such changes, absent evidence that a majority representative clearly and unequivocally waived its right to negotiate. City of East Orange, P.E.R.C. No. 2020-36, 46 NJPER 318 (¶78 2020), citing Kean University, P.E.R.C. No. 2018-18, 44 NJPER 221 (¶64 2017). The majority representative is not required to first prove a severable “impact” or demand negotiations regarding such changes. E. Orange. ¶

Standards for Determining Negotiability ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulates the standards for determining whether a subject is mandatorily negotiable: ¶

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government’s managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees’ working conditions. ¶

[Id. at 404-405.] ¶

Where a statute or regulation addresses a term and condition of employment, negotiations are preempted only if it speaks in the imperative and fixes a term and condition of employment expressly, specifically and comprehensively. Bethlehem Tp. Ed. Ass’n v. Bethlehem Tp. Bd. of Ed., 91 N.J. 38, 44 (1982); State v. State Supervisory Employees Ass’n, 78 N.J. 54, 80-82 (1978). We must balance the parties’ interests in light of the particular facts and arguments presented. City of Jersey City v. Jersey City POBA, 154 N.J. 555, 574-575 (1998). ¶

Analysis ¶

Applying the above standards here, and granting all favorable inferences to the Association, the non-moving party, we deny the Board’s motion for summary judgment, as follows. ¶

We find the record reflects disputed issues of fact as to whether the parties engaged in negotiations or reached agreement about the Board’s new sick leave verification policy during the October 2, 2023, meeting at which the sick leave law amendments and the Board’s proposed letter to employees were discussed.6/ Summary judgment is precluded if that factual dispute is material to the outcome here. It would be immaterial only if the Board, as a matter of law, had no obligation to negotiate with the Association over any aspect of its new sick leave verification policy before implementing it. ¶

To determine that issue, we will first review well- established case law precedent addressing the issues of sick leave and sick-leave verification. We will then consider the 2023 amendments to the school sick leave laws in connection with that precedent and the Local 195 negotiability test, balancing the parties’ interests in light of the particular facts and arguments presented. ¶

Paid and unpaid leaves of absence intimately and directly affect employees’ work and welfare and are ordinarily mandatorily negotiable. Union County, P.E.R.C. No. 2021-57, 48 NJPER 46 (¶12 2021), citing, e.g., Burlington Cty. College Faculty Ass’n v. Board of Trustees, Burlington Cty. College, 64 N.J. 10, 14 (1973); Piscataway Tp. Bd. of Ed. v. Piscataway Maintenance & Custodial Ass’n, 152 N.J. Super. 235, 243-44 (1977); Hoboken Bd. of Educ. v. Hoboken Teachers’ Ass’n. (App. Div. 1982), aff’ g 7 NJPER 135 (¶12058 1981). ¶

But employers have a non-negotiable managerial prerogative to establish sick leave verification policies, and to use reasonable means to verify employee illness or disability, to ensure that sick leave is not being abused. In re City of E. Orange & E. Orange Superior Officers’ Ass’n (App. Div. 2022), aff’ g P.E.R.C. No. 2021-50, 47 NJPER 530 (¶124 2021); City of Trenton, P.E.R.C. No. 2005-20, 30 NJPER 413 (¶135 2004); City of Elizabeth and Elizabeth Fire Officers Ass’n, Local 2040, IAFF, 198 N.J. Super. 382 (App. Div. 1985), aff’ g P.E.R.C. No. 84-75, 10 NJPER 39 (¶15022 1983); Piscataway Tp. Bd. of Ed., P.E.R.C. No. 82-64, 8 NJPER 95, 96 (¶13039 1982). ¶

However, “the application of a policy, the denial of sick leave pay, sick leave procedures, penalties for violating a policy, and the cost of a required doctor’s note are all mandatorily negotiable.” City of Paterson, P.E.R.C. No. 92-89, 18 NJPER 131 (¶23061 1992); Middlesex Bd. of Ed., P.E.R.C. No. 2020-8, 46 NJPER 113 (¶24 2019) (issue of how many days association members had to submit doctor’s note following use of sick leave was negotiable procedural issue severable from board’s prerogative to verify illness); In re Tp. of Parsippany-Troy Hills, 419 N.J. Super. 512 (App. Div. 2011), aff’ g P.E.R.C. No. 2011-18, 36 NJPER 326 (¶127 2010)(employer had “neither a managerial prerogative nor a statutory right to require employees who decline FMLA leave to complete a FMLA medical certification” ). ¶

The employer’s significant interest in seeking to verify illness when necessary to ensure compliance with sick leave rules must also be balanced against employees’ “strong privacy interest in being protected against inquiries that could lead to the disclosure of illnesses or disabilities unrelated to sick leave abuse.” Trenton, supra, 30 NJPER 413 (absent a record of sick leave abuse, sick leave verification did not entitle employer to details of employee’s illness); Parsippany-Troy Hills, supra, 36 NJPER 326 ( “sick leave verification does not permit an employer to routinely request details of an employee’s illness” ). ¶

As amended effective July 3, 2023, N.J.S.A. 18A:30-1 provides, in relevant part (new sick-leave purposes underlined): ¶

Definition of sick leave a. Sick leave is defined as the absence from an employee’s post of duty, for any of the following reasons: ¶

(1) the employee is personally ill or injured; ¶

(2) for diagnosis, care, or treatment of, or recovery from, an employee’s mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee; ¶

(3) for the employee to aid or care for a family member of the employee during diagnosis, care, or treatment of, or recovery from, the family member’s mental or physical illness, injury or other adverse health condition, or during preventive medical care for the family member; ¶

(4) absence necessary due to circumstances resulting from the employee, or a family member of the employee, being a victim of domestic or sexual violence, if the leave is to allow the employee to obtain for the employee or the family member: ¶

(a) medical attention needed to recover from physical or psychological injury or disability caused by domestic or sexual violence; ¶

(b) services from a designated domestic violence agency or other victim services organization; ¶

(c) psychological or other counseling; ¶

(d) relocation; or ¶

(e) legal services, including obtaining a restraining order or preparing for, or participating in, any civil or criminal legal proceeding related to the domestic or sexual violence; ¶

(5) the death of a family member for up to seven days; ¶

(6) to attend a child’s school-related conference, meeting, function or other event requested or required by a school administrator, teacher, or other professional staff member responsible for the child’s education, or to attend a meeting regarding care provided to the child in connection with the child’s health conditions or disability; ¶

(7) the school or place of care of a child of the employee is closed by order of a public official or because of a state of emergency declared by the Governor, due to an epidemic or other public health emergency; ¶

(8) the employee has been exposed to a contagious disease or is quarantined for the disease in the employee’s immediate household. ¶

b. The provisions of this section, and any regulations promulgated to implement or enforce this section, shall not supersede any law providing collective bargaining rights for school district employees, and shall not reduce, diminish, or adversely affect an employee’s collective bargaining rights. ¶

[N.J.S.A. 18A:30-1 a. and b.] ¶

As amended, N.J.S.A. 18A:30-4 provides, in relevant part (new verification/notice options underlined): ¶

Sick leave, physician’s certificate, requirements; definitions a. In case of sick leave claimed due to personal illness or injury, a board of education may require a physician’s certificate to be filed with the secretary of the board of education in order to obtain sick leave. ¶

b. If an employee’s need to use sick leave as defined pursuant to N.J.S.18A:30-1 is foreseeable, a board of education may require advance notice, not to exceed seven calendar days prior to the date the leave is to begin, of the intention to use the leave and its expected duration, and the employee shall make a reasonable effort to schedule the use of sick leave in a manner that does not unduly disrupt the operations of the board of education. ¶

c. If the reason for the leave is not foreseeable, a board of education may require an employee to give notice of the intention as soon as practicable, if the board of education has notified the employee of this requirement. ¶

d. A board of education may prohibit employees from using foreseeable sick leave on certain dates, and require reasonable documentation if sick leave that is not foreseeable is used during those dates. ¶

e. In case of sick leave claimed for three or more consecutive days, a board of education may require reasonable documentation that the leave is being taken for a purpose permitted pursuant to subsection a. of N.J.S.18A:30-1. ¶

f. If the leave is permitted under paragraph (2) or (3) of subsection a. of N.J.S.18A:30- 1, documentation signed by a health care professional who is treating the employee or the family member of the employee indicating the need for the leave and, if possible, number of days of leave, shall be considered reasonable documentation. ¶

g. If the leave is permitted under paragraph (4) of subsection a. of N.J.S.18A:30-1 because of domestic or sexual violence, any of the following shall be considered reasonable documentation of the domestic or sexual violence: ¶

(1) medical documentation; ¶

(2) a law enforcement agency record or report; ¶

(3) a court order; ¶

(4) documentation that the perpetrator of the domestic or sexual violence has been convicted of a domestic or sexual violence offense; ¶

(5) certification from a certified Domestic Violence Specialist or a representative of a designated domestic violence agency or other victim services organization; or ¶

(6) other documentation or certification provided by a social worker, counselor, member of the clergy, shelter worker, health care professional, attorney, or other professional who has assisted the employee or family member in dealing with the domestic or sexual violence. ¶

h. If the leave is permitted under paragraph (7) of subsection a. of N.J.S.18A:30-1, a copy of the order of the public official or the determination by the health authority shall be considered reasonable documentation. ¶

[N.J.S.A. 18A:30-4 a. through h. (bold emphases added).] ¶

The legislative statement accompanying the above amendments states, in pertinent part: ¶

This bill expands the scope of . . . sick leave . . . to allow school district employees to use sick leave for the following reasons: . . . [listing all reasons]. This bill provides that its provisions do not supersede any collective bargaining rights. ¶

Additionally, . . . [t]his bill amends this law to allow a board of education to require a physician’s certificate to be filed with the secretary of the board of education in order to obtain sick leave only when sick leave is used for personal injury or illness. Finally, the bill provides various conditions for when a board of education may request advance notice or reasonable documentation for use of sick leave. ¶

[Statement to P.L. 2023, C.95, Assembly, No. 5060 (bold emphasis added).] ¶

As noted supra, the 2023 amendments state that employers “may” require “reasonable documentation” from employees who request sick leave, and “may” require up to seven days’ advance notice if the need for leave is foreseeable. They also state that employers “may” prohibit employees from using foreseeable sick leave on certain (unspecified) dates and require reasonable documentation of non-foreseeable sick leave used during those dates. The amendments specify that certain types of documentation “shall” be deemed reasonable but do not expressly state that only those types may be accepted as reasonable or must be routinely provided. ¶

Based on its repeated use of the discretionary word “may,” we do not find (and the Board does not claim) that N.J.S.A. 18A:30-4 preempts negotiation over the documentation and notice provisions of the Board’s sick leave verification policy.7/ Thus, we must consider whether, as the Board claims, such negotiation would significantly interfere with the determination of governmental policy, under the third prong of the Local 195 negotiability test. ¶

Certain types of leave allowed by the 2023 amendment to N.J.S.A. 18A:30-1 implicate employees’ strong privacy interests. Trenton, supra, 30 NJPER 413; Parsippany-Troy Hills, supra, 36 NJPER 326. That interest is strongest in connection with the types of sick leave allowed by N.J.S.A. 18A:30-1a. (2) through (4).8/ That is, when leave is needed for: diagnosis, care, or treatment of, or recovery from, a mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee or a family member; and for absence resulting from the employee or a family member being a victim of domestic or sexual violence. The sick-leave uses listed in N.J.S.A. 18A:30-1a. (5) through (8) may not implicate employees’ privacy interests to the same extent. However, the legislative grant of discretion to employers as to whether to require verification is found in all categories of sick-leave use and documentation. ¶

Accordingly, we find that in the absence of a record of sick leave abuse (which has not been presented here), that discretion may be exercised through collective negotiations. Considering the new and widely varying uses of sick leave introduced by the 2023 amendments, we find that issues surrounding what specific types of verification documentation the Board may require (including associated costs, if any, as well as deadlines for notice and production) largely concern procedural aspects of a verification policy. As such, we find that negotiation over these issues would not significantly interfere with the Board’s managerial prerogative to determine educational policy. Nothing in the legislative history of the 2023 amendments would lead us to conclude otherwise. Further, the Board presented no certified facts specifying any particular ways in which such negotiations would substantially interfere with its policy making powers. ¶

Specifically, we find the parties may negotiate over whether or to what extent such documentation must be routinely provided in the absence of a record of sick leave abuse. We further find that in light of employees’ privacy interests, the issue of how an employee designates a sick-leave absence in the Board’s absence management system (i.e., as anything more specific than “sick leave” or the like) is also negotiable in the absence of a record of sick leave abuse. ¶

We further find the Board had an obligation to negotiate over verification documentation requirements in cases of the use of non-foreseeable sick leave “the day before or immediately following a recess period or holiday pursuant to the district calendar.” (Board Exhibit D.) The Board’s policy states only that in such cases “a physician’s certificate will be required.” (Id.) However, that requirement does not encompass the numerous other allowable uses of sick leave set forth in N.J.S.A. 18A:30- 1a. Because we have found that negotiations may occur over the specific types of documentation that may be required for those uses, such negotiation necessarily would impact the documentation requirements for non-foreseeable sick leave taken before or after a recess or holiday. ¶

Further, as the question of when sick leave that is foreseeable may be taken effectively concerns a scheduling issue, we deny summary judgment regarding the Board’s allegedly unilateral restrictions on such use before or after a recess or holiday. We have consistently held that the scheduling of time off is mandatorily negotiable, provided the employer can meet its staffing requirements. Trenton Bd. of Ed., H.E. No. 2023-9, 49 NJPER 491 (¶120 2023), citing, State of New Jersey (Dep’t of Corrections), P.E.R.C. No. 2004-77, 30 NJPER 208 (¶78 2004); Pennsauken Tp., P.E.R.C. No. 92-39, 17 NJPER 478 (¶22232 1991); City of Elizabeth, P.E.R.C. No. 82-100, 8 NJPER 303 (¶13134 1982); Watchung Bor., P.E.R.C. No. 2016-49, 42 NJPER 351 (¶99 2016). ¶

Finally, we deny summary judgment on the issue of the Board’s requirement that employees provide notice of seven calendar days in advance of foreseeable sick leave. As this is the maximum notice allowed by N.J.S.A. 18A:30-4, and the statute does not set a minimum requirement, the length of the notice period, up to seven days, is negotiable. ¶

OrderORDER ¶

The foregoing reasons, the Board’s motion for summary judgment is denied. We remand this case to the Director of Unfair Practices for further proceedings consistent with this decision. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Eaton, Ford, Kushnir, and Papero voted in favor of this decision. None opposed. Commissioner Higgins was not present. ¶

ISSUED: March 27, 2025 ¶

Trenton, New Jersey ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act” ; and “(5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative.” ¶

2/ A related unfair practice charge involving the same parties and legal issues, CO-2024-122, has been held in abeyance pending a decision in this matter. ¶

3/ For reasons not reflected in the record, the Board did not move for summary judgment until December 2, 2024, despite an October 30 letter from the Hearing Examiner to the parties stating that if the Board did not do so by November 18, the case would be scheduled for a hearing. The record does not indicate that the Association opposed or otherwise objected to the Board’s motion based on its filing date. ¶

4/ The certification lists and identifies the Board’s exhibits. ¶

5/ The exceptions are sick leave used for a death in the family and for a child’s school-related function, as to which the statute gives no specific documentation examples. The Board’s letter states that reasonable documentation for these uses of sick leave could include: “an obituary, funeral service program or medical certification” for a death in the family; and “a school announcement, appointment request or invitation from the professional employed by the child’s school” for a child’s school-related event. (Board Exhibit D.) ¶

6/ We find there is no dispute that the Board subsequently circulated the letter to employees, and in doing so implemented its new sick leave verification policy. Whether that policy is a writing bearing any indicia of an agreement having been reached on terms and conditions of employment, N.J.S.A. 34:13A-5.3, presents a factual question. We also note that because its summary judgment motion is unsupported by a certification or affidavit based upon personal knowledge, the Board has not established that there are no genuine issues of material fact in dispute. Mercer Cty, El- Sioufi, Wells Fargo, supra. ¶

7/ See, e.g., State of New Jersey (Div. of Criminal Justice), P.E.R.C. No. 2024-42, 50 NJPER 393 (¶94 2024) ( “courts and the Commission have regularly found that statutes and regulations providing that a public employer ‘may’ take a particular action are not imperative but confer discretion that may be exercised through collective negotiations” ), citing, Local 195, supra, 88 N.J. at 406; Hunterdon Cty., 116 N.J. 322, 331 (1989); Essex Cty. Sheriff, P.E.R.C. No. 2006-86, 32 NJPER 164 (¶73 2006). ¶

8/ We do not address the Board’s requirement of a doctor’s note for an employee’s personal injury or illness, because the Association concedes that is not at issue here. ¶