Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1981 No. 17 -
Attorney General Ken Eikenberry


Resolution of several legal issues relating to the simultaneous receipt, by school district employees, of sick leave under RCW 28A.58.100 as amended by chapter 182, Laws of 1980, and workers' compensation payments under the state Industrial Insurance Act pursuant to a negotiated collective bargaining agreement.

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                                                                    July 15, 1981

Honorable Curtis M. Janhunen
Prosecuting Attorney
Grays Harbor County
P.O. Box 550
Montesano, Washington 98563                                                                                                               Cite as:  AGLO 1981 No. 17

Dear Sir:

            By letter previously acknowledged, you described, and asked us to review, the following hypothetical school district collective bargaining contract provision:

            "In the event employees are absent for reasons for reasons [sic] which are covered by industrial insurance, the district shall pay the employee an amount equal tothe difference between the amount paid the employee by the Department of Labor [and] Industries and the amount the employee would normally earn.  A deduction shall be made from the employee's accumulated sick leave in accordance with the amount paid to the employee by the district."

            You then asked:

            "Would the . . . [foregoing] contractual provision in a collective bargaining agreement between a school district and a certified collective bargaining representative violate Chapter 182, Laws of 1980, or any other statute?"

             [[Orig. Op. Page 2]]


            Before addressing your question in the context of chapter 182, Laws of 1980, let us first consider it in the light of RCW 51.32.090(6) which we referred to in our earlier letter to you of January 14, 1981.  That provision, which is part of the state Industrial Insurance Act, reads as follows:

            "Should a worker suffer a temporary total disability and should his or her employer at the time of the injury continue to pay him or her the wages which he or she was earning at the time of such injury, such injured worker shall not receive any payment provided in subsection (1) of this section during the period his or her employer shall so pay such wages."

            Unlike the proposal which you asked us to review earlier, the instant approach would have the school district pay an employee who is also receiving temporary industrial insurance benefits only the difference, or "shortfall," between those benefits and the employee's normal salary.  Payments by the district would then be charged against the employee's accumulated sick leave.  For example, if the employee's industrial insurance benefits were the equivalent of three‑fourths of his or her full rate of pay, the employee would be deemed to have taken one‑quarter day of compensable accumulated sick leave per day and would be paid accordingly by the district.

            We believe that this approach avoids the conflict with RCW 51.32.090(6),supra, which would exist with regard to the earlier proposal you sent us.  Specifically, the present plan is in line with the construction placed on that statute by the Department of Labor and Industries, with which we concur‑-to wit:  The statute is not intended to preclude the simultaneous receipt of "wages" and industrial insurance benefits in all cases; instead, it acts only to preclude the simultaneous receipt of wages and benefits to the extent that the combination of the two would exceed the employee's normal income from his or her employment.

             [[Orig. Op. Page 3]]

            With that we now turn to the primary question you have here posed; namely, the validity of the above‑quoted school district's collective bargaining contract provision in the light of RCW 28A.58.100 as amended by § 4, chapter 182, Laws of 1980.  As thus amended, that statute, relating to school district leave policies, reads in pertinent part as follows:

            "Every board of directors, unless otherwise specially provided by law, shall:

            ". . .

            "(2) Adopt written policies granting leaves to persons under contracts of employment with the school district(s) in positions requiring either certification or noncertification qualifications, including but not limited to leaves for attendance at official or private institutes and conferences and sabbatical leaves for employees in positions requiring certification qualification, and leaves for illness, injury, bereavement and, emergencies for both certificated and noncertificated employees, and with such compensation as the board of directors prescribe:  PROVIDED, That the board of directors shall adopt written policies granting to such persons annual leave with compensation for illness, injury and emergencies as follows:

            "(a) For such persons under contract with the school district for a full year, at least ten days;

            "(b) For such persons under contract with the school district as part time employees, at least that portion of ten days as the total number of days contracted for bears to one hundred eighty days;

            "(c) For certificated and noncertificated employees, annual leave with compensation for illness, injury, and emergencies shall be granted and accrue at a rate not to exceed twelve days per year; provisions of any contract in force on June 12, 1980, which conflict with requirements of this subsection  [[Orig. Op. Page 4]] shall continue in effect until contract expiration; after expiration, any new contract executed between the parties shall be consistent with this subsection;

            "(d)Compensation for leave for illness or injury actually taken shall be the same as the compensation such person would have received had such person not taken the leave provided in this proviso;

            "(e) Leave provided in this proviso not taken shall accumulate from year to year andsuch accumulated time may be taken at any time during the school year but for purposes of payments for unused sick leave shall not exceed twelve days per year;

            ". . ."  (Emphasis supplied)

            There are several separate issues which the foregoing statutory language raises.  We will discuss them in turn.

            First, as you have specifically asked, would,

            ". . . the taking of a portion of a sick leave day, as in the above situation, . . . violate the 12-day limit on leave for illness or injury imposed by . . . [RCW 28A.58.100(2)(c)] . . ., if the taking of portions of sick leave occurred for more than 12 days?"

            The answer to this question, in our opinion, is no.  Simply stated, RCW 28A.58.100(2)(c),supra, only restricts the granting or award of "sick leave" with compensation and not the award of uncompensated leave by a school district.  Furthermore, the twelve‑day restriction contained therein applies by its terms to the granting and accrual of "sick leave" and not to the taking or use of accrued leave.  It says, in essence, that only twelve days of sick leave may be earned or accrued during a given year but says nothing about the amount of such leave, previously earned and accrued, which may be taken during a given school year.

             [[Orig. Op. Page 5]]

            The second issue to be considered relates to the language of RCW 28A.58.100(2)(d),supra,i.e.,

            "Compensation for leave for illness or injury actually taken shall be the same as the compensation such person would have received had such person not taken the leave provided in this proviso;"

            The issue thus raised is whether that statutory language requires a school district to pay an employee one full day of pay for each day the employee is off work‑-to the extent of the employee's accumulated compensable "sick leave"‑-notwithstanding a contract provision (such as that above set forth) under which the employee would only receive a fraction of a day's pay from the school district, coupled with whatever workers' compensation benefits he or she is entitled to.

            Again, we think not.  The principal purpose of subsection (2)(d), supra, appears to be merely that of assuring that accumulated leave with compensation is provided at the employee's rate of pay when the leave is taken and not a lower rate. Moreover, in any case, this provision of the statute addresses the rate of compensation for leave "actually taken" and, in the case before us, the employee would only be taking a partial day of accumulated leave for each day during which he or she was away from work.  And, in turn, the employee would, indeed, be compensated for each fractional day of sick leave on the basis of his or her rate of compensation at the time the leave is taken.

            In summary thus far, we therefore conclude that the proposed contractual language which you have now asked us to review would not violate, or be in conflict with, either RCW 51.36.090(6), supra, RCW 28B.58.100(2)(c), supra, or RCW 28A.58.100(2)(d), supra.  There is, however, one further issue to be explored and it involves the final segment of RCW 28A.58.100 which we have quoted above; namely, subsection (2)(e) which reads:

            "Leave provided in this proviso not taken shall accumulate from year to year andsuch accumulated time may be taken at any time during the school year but for purposes of payments for unused sick leave shall not exceed twelve days per year;" (Emphasis supplied)

             [[Orig. Op. Page 6]]

            This portion of the statute appears to us to grant to each individual employee the right to determine when and to what extent he or she will use his or her accumulated sick leave in the event of illness or injury.  Quaere:  Therefore, can this statutory right be bargained away through the collective bargaining process?

            Quite frankly, we are not entirely certain of the answer to that question.  But, most certainly, there may well be instances in which a given employee might prefer to receive full sick leave benefits from the school district by which he or she is employed and forego any simultaneous receipt of workers' compensation.  One reason for such a decision could well be an awareness that retirement benefits under both chapter 41.32 and 41.40 RCW (by which most school district employees are covered) are keyed to "earnable compensation" which includes sick leave but not such things as industrial insurance benefits.

            With that in mind, we would, at this point, therefore, direct your attention to the case ofOak Harbor School Dist. v. Oak Harbor Education Ass'n, 86 Wn.2d 497, 545 P.2d 1197 (1976) and then make a recommendation as to procedure.  In theOak Harbor case the Court, in effect, voided a policy negotiated by a school district and the bargaining representatives of its certificated employees which purported to limit recognition of service for seniority purposes to services within the district.  In ruling that the proposed policy conflicted with the statutory right of employees to have seniority computed on the basis of statewide service, the Court said:

            "It has been suggested that a school district should be left free to negotiate or adopt whatever criteria it chooses for reduction of personnel.  Whether this is sound public policy is, of course, a question for the legislature, whose authority and responsibility it is to determine the powers and duties of school districts.  Noe v. Edmonds School Dist. 15, 83 Wn.2d 97, 515 P.2d 977 (1973).

            "The statute in question does indeed allow districts much latitude in negotiating and adopting criteria for hiring and discharge.  But it does impose restrictions and duties.  One of these  [[Orig. Op. Page 7]] is to give recognition to the accumulated seniority, leave benefits, and other benefits of teachers who have taught in other district. . . ."  Oak Harbor School District,supra, at 500.

            In view of this decision, and the implications which may well be derived therefrom, our recommendation, in turn, is quite simple:  Amend the text of the proposed contract provision in such a manner as to stipulate that an employee will have the option, instead, of claiming and receiving all of his or her accumulated "sick leave" benefits prior to claiming and receiving industrial insurance payments.  In that manner the potential problem which we have just attempted to outline‑-to the extent that it really is a problem‑-could readily be eliminated.

            It is hoped that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General