The Colton Decision and Public School Employees

Thursday, February 11, 2010 | 0

By Michael Sullivan

COMPENSATION PAID TO SCHOOL DISTRICT EMPLOYEES
A school district employee is entitled to receive several special kinds of compensation after sustaining an industrial injury. These take the form of salary supplements to temporary disability for some limited period of time. Thus, where other employees receive TTD, school district employees may receive full pay while off from work due to industrial injury. These arrangements are mandated by the California Education Code (EC).

These special payments include workers' compensation benefits (LC 4653) in combination with 60 days of industrial accident and illness leave (EC 45192 and 44984), sick leave (EC 45191 and 44978), vacation leave (EC 45197), paid holidays (EC 45203) and a form of leave called "differential leave" (EC 45196, 44977 and 44983).

TYPES OF EMPLOYEES
It is worth noting upfront that school district employees are typically either certificated or classified. These terms are used through the statutory scheme, and the benefits conferred to each type of employee are not always the same.

Certificated employees are those that require special certification to be allowed to perform their jobs. Teachers are certificated employees, as are various administrators in a district. Classified staff are employees in positions not requiring certification. These include teaching assistants, teacher aides, pupil services aides, library aides, office/clerical staff, custodians, bus drivers, cafeteria workers and the like.

LEAVE PAY IN GENERAL
During the period of total temporary disability from an industrial injury, an employee is entitled to workers' compensation benefits of two-thirds his or her regular pay (LC 4653). However, if an employee's temporary disability rate is less than his or her normal wage, a school district is required to pay any school employee receiving temporary disability benefits his or her normal wage by replacing temporary disability benefits with the employee's available sick leave, vacation time, compensated time off, or other paid leave of absence (EC 44043). The employee then does not receive TTD, which the school district retains.

Every full-time classified employee is entitled to at least 12 annual sick days (EC 45191), and every full-time certificated employee is entitled to at least 10 annual sick days (EC 44978). These days may be accumulated from year to year. The amount of vacation time is determined by the amount of time worked and may be accumulated from year to year (EC 45197).

The employee's accrued leave time, "shall be reduced only in that amount necessary to provide a full day's wage or salary when added to the temporary disability benefits." Thus, when a school district employee goes off on temporary disability due to work related injury, he or she will receive regular pay for some period of time where another employee would only receive TTD. The school district and the administrative agency must keep careful track of the time allocated to supplement the TTD. This can go on for some time, given that the applicant only has to use enough leave time as is needed to bring the TTD payment up to the rate of a full day's pay. When available leave time expires, the employee is given only TTD.

SIXTY DAYS OF LEAVE
The Education Code requires governing boards of school districts to provide for "industrial accident and illness leaves of absence". This is provided for under Education Code sections 44984 and 45192, which are applicable to certificated and classified employees, respectively. This is in addition to vacation and sick pay, and other leave time that an injured employee is otherwise entitled to. The board is to provide rules and regulations that provide this industrial leave for at least sixty days following industrial injury.

This leave commences on the first day of the absence due to industrial injury. This benefit supplements what would otherwise be owed in temporary disability, so that the employee receives in effect full salary. The industrial accident and illness leave is reduced by one day for each day of authorized absence, regardless of entitlement to temporary disability. It only lasts sixty days, regardless of the monetary disparity between full pay and temporary disability. In this way this leave is unlike supplementary sick or vacation time. Once the sixty days is up, the applicant begins to receive temporary disability supplemented by other forms of leave available to him. For purposes of these other forms of leave supplementing TTD, "his absence shall be deemed to have commenced on the date of termination of the industrial accident or illness leave".

Note that the industrial accident and illness leave does not accumulate from year to year. If an industrial injury or illness leave overlaps into the next fiscal year, the employee is entitled only to the the amount remaining at the end of the fiscal year in which the injury or illness occurred, for the same illness or injury. It is unclear if this leave is always an entitlement for each distinct date of injury. Perhaps if more than one injury occurs, and these combine to force the employee to leave work, the sixty day period will run concurrently. It seems though that an applicant who has no wish to work has an incentive to incur annual injuries upon return to work - and recover and return precisely when leave is due to expire.

An employee receiving industrial accident and illness leave benefits must remain within the State of California unless authorized by the school board to travel outside the state.

DIFFERENTIAL LEAVE
After use of the sixty days of industrial leave, and the use of all vacation time, classified employees are also entitled to "differential leave" (EC 45196). This is leave wherein the employee is entitled to at least one half of paid salary. It lasts for 100 days, minus the number of regular sick leave days the employee has and uses after industrial injury.

Thus differential leave days are used up concurrently with sick leave days, until those sick leave days run out. The remainder of the 100 days are "shall be compensated at not less than 50 percent of the employee's regular salary." This differential leave is designed so that the school employee receives full pay as long as possible. Most often the sick time will be used over as many days as needed to achieve full days of pay for the longest possible period. In that case the applicant's sick time will not be used to bring him or her to fifty percent pay. After this is done though the employee for the remainder of the 100 days is guaranteed at least one half pay.

The term "differential" arises because of the construction of EC 45196. That section allows for a school district to create the rule allowing for the 100 days of half pay, minus sick days, as explained here. This is commonly done. If a school district were to choose, however, not to make such a rule, the statute provides for an alternative. The classified employee off from work for five months or less would not have more money deducted from his salary for that five month period than what a substitute teacher would actually receive. The difference must be calculated, thus, "differential" leave.

A similar statutory construction exists for certificated employees. Under EC 44977, differential pay is the difference between an employee's salary and the amount paid to the substitute who replaces him or her.  However EC 44983 allows a school district to adopt a rule establishing half pay along the same lines as classified employees. That statute does not set out a 100 day period specifically, but generally that period is adopted by the school district. And so certificated and classified employees can be on equal footing here.

In some cases the temporary disability rate might exceed half pay. When the employee's half salary is less than he or she would have received as temporary disability benefits, the employee is entitled to the full temporary disability rate.

 PAYMENT TO THE EMPLOYEE
The Education Code sets out a procedure for payment of the employee's normal wage during the period of temporary disability. It provides that "the district shall require that temporary disability checks be endorsed payable to the district. The district shall then cause the employee to receive the person's normal wage or salary less appropriate deductions including but not limited to employee retirement contributions." (Ed Code 44043, 44984, and 45192). This means a school district employee is required to endorse his or her disability check and give it to the school district. In turn, the school district then pays the employee his or her normal wages as long as the employee has accrued leave available.

An alternate procedure set forth in Education Code section 44044 allows the school district to waive the requirement that temporary disability checks be endorsed payable to the district. Instead, the employee may keep his or her temporary disability check, so long as the employee has notified the school district that he or she has received the check. The school district then issues another check to cover the difference between the employee's normal salary and the amount of the temporary disability check. In all cases, employee benefits are to be computed on the basis of the employee's regular wage or salary prior to the deduction of any amounts for temporary disability payments.

In Mt. Diablo USD v. WCAB (Rollick), it was suggested that most school districts in California are self-insured and do not follow the procedures set forth in sections 44043 or 44044. Instead, the claims administrator issue a "voucher" equal to the amount of the employee's temporary disability to the school district, and the school district pays the injured worker his or her full salary. It was explained that this procedure saved all parties time and money, while speeding and simplifying the administration of benefits. The court determined that this slight administrative deviation was immaterial since it is mutually beneficial to the parties and achieves the same result.

THE 39 MONTH RE-EMPLOYMENT LIST
The school district employee is also sometimes entitled to an unusual benefit once TTD comes to an end and permanent disability is assessed. As discussed in depth in the next chapter, at the time of permanent and stationary status, temporary disability ends. The applicant's work restrictions are compared to the duties the job requires. Sometimes the applicant cannot due to those work restrictions be returned to that job, even if it is modified. The employer will then attempt to find alternative work. If that is not available either, normally employees would have their employment relationship terminated.

Not so for the school district employee. If the applicant's permanent work restrictions render him or her unable to resume duties, after all available leaves of absence have been exhausted, the employee is placed on a reemployment list for a period of 39 months if not placed in another position. This is true for both classified (EC 45192) and certificated (EC 44978.1) employees. While on the list, at least the certificated applicant continues to be an employee of the district. However, if an employee who has been placed on the reemployment list is "medically released for return to duty", is offered an appropriate assignment, and refuses it, he or she "shall be dismissed."

An employee placed on the reemployment list has first dibs at any jobs that come available in the district that do not violate his or her permanent restrictions. EC 45192 states that "When available, during the 39 month period, the person shall be employed in a vacant position in the class of the person's previous assignment over all other available candidates except for a reemployment list established because of lack of work or lack of funds, in which case the person shall be listed in accordance with appropriate seniority regulations." For certificated employees under EC 44978.1 the same general rule applies, unless the employee is probationary, in which case the period in question is only 24 months.

Should an employee on the list be restored to his or her position, the break in service is not considered for any purpose; rather, the employee is placed in the position as if the break had not occurred (EC 44931). Placement of an employee on the re-employment list in compliance with the Education Code does not violate LC 132a. However, in one case, the appeals board held that terminating an applicant's health benefits without a business necessity while she was on the re-hire list did violate LC 132a.

<i>Michael Sullivan is the principal of Michael Sullivan & Associates, P.C. a defense firm, and the author of the forthcoming Sullivan on Comp treatise on California Workers' Compensation Law slated for publication in January 2011.</i>