On appeal from State Board of Education.
Botter, Polow and Brody. The opinion of the court was delivered by Polow, J.A.D. Botter, P.J.A.D., concurring in result only and dissenting.
Petitioner Lillian Hynes is a tenured teacher in the Bloomfield Township school system. She applied for paid sick leave from December 1, 1978 until January 24, 1979 for maternity based upon a doctor's certificate indicating an expected date of confinement of December 27, 1978. Her child was born on December 19, 1978. Respondent, the local Board of Education ("local board"), denied petitioner's request for paid sick leave because she "did not provide sufficient evidence of disability. . . ." The State Board of Education ("State Board") on appeal ruled that sick leave was allowable to a pregnant teacher based upon presumptive periods of disability commencing one month before the expected date of childbirth and ending one month (20 working days) after child birth. The local board appeals. We conclude that the determination by the State Board is a reasonable exercise of its administrative authority and affirm.
Based upon her doctor's certification that she was pregnant and was expected to give birth on December 27, 1978, Hynes sought maternity leave and sick leave from December 1, 1978 without setting forth any other cause of disability. Upon receiving the application, the superintendent of schools requested that he be advised of the expected termination date for maternity leave. Subsequently, the superintendent asked petitioner to report for an examination by the school physician on December 19 "in order to determine any disability for sick leave which you have requested." Hynes failed to keep the appointment because on that date at 5:20 a.m. she delivered her child.
On March 27, 1979 the superintendent advised Hynes that her application for maternity leave had been granted through June 30, 1979, but that her application for sick leave was denied "since you did not provide sufficient evidence of disability and did not accede to our request to be examined by a board named physician." Hynes then explained the reason for not having kept the appointment with the school doctor. The superintendent responded that further consideration of her claim for sick leave would be given if her doctor certified (1) the actual date when the claimed disability or illness started, (2) the nature of the illness or disability, (3) whether such illness or disability prevented the performance of duties as a teacher during the time in question, (4) the treatment prescribed, and (5) the exact date of termination of such illness or disability. However, the certifications requested were not furnished.
When Hynes failed to provide the additional certifications, her application for sick leave was rejected. On her appeal to the Commissioner of Education the matter was submitted to an Administrative Law Judge (ALJ). Relying on the ALJ's opinion and findings, the Commissioner held that Hynes could use her accumulated sick leave credits for prenatal disability from December 1, 1978 to December 27, 1978, the anticipated date of her confinement, but that she would have to present an additional medical certificate for the period of postnatal disability.
The local board appealed to the State Board which endeavored in its decision "to clarify the existing law for the future guidance of local boards." The State Board followed the Commissioner's earlier pronouncements in the Cinnaminson case.*fn1 The State Board said:
To further elucidate the subject, we believe that in pregnancy cases, if the teaching staff member is requesting no sick leave before the ninth month of pregnancy, the physician need only certify the date that birth is expected. The
presumption will then arise that disability begins one month prior to the anticipated delivery. Likewise, if the teacher requests no sick leave beyond one month following delivery, the physician need only certify the date of the actual birth; the presumption of disability will cover the following month. If, however, the staff member wants to take sick leave either more than one month before anticipated delivery or more than one month after the birth, the Board may require a further physician's certificate as to the actual dates that the disability began or terminated, as the case may be. On the other hand, if the teacher continues to work during her ninth month of pregnancy (and the Board's physician does not find her unfit), the presumption of disability for that month is overcome pro tanto.
Thus, the State Board held that Hynes was entitled to sick leave for a period of postnatal disability ending on January 19, 1979, but that she would have to provide a doctor's certificate if she wished to claim sick leave for the period beyond one month postpartum, namely, from January 19 to January 24, 1979.
Sick leave with full pay for a minimum of ten school days per year, subject to accumulation, is provided by statute for all persons regularly employed by a board of education. N.J.S.A. 18A:30-2 and -3. Sick leave is defined as absence from work for "personal disability due to illness or injury" or exclusion on account of a contagious disease. N.J.S.A. 18A:30-1. Pregnancy is neither an "injury or illness," and so disability due to pregnancy is not within the literal terms of N.J.S.A. 18A:30-1. See Castellano v. Linden Educ. Bd., 158 N.J. Super. 350, 360-362 (App.Div.1978), aff'd 79 N.J. 407, 410 (1979). However, Castellano held that disallowing sick leave for disability caused by pregnancy discriminates against women, since sick leave is available for disabilities due to illness or injury.
A woman giving birth to a child becomes physically disabled and unable to attend to her teaching duties for that reason. It is discriminatory not to allow her to use her accumulated sick leave during that period of temporary disability, when it can be used for any ...