Trapped: Judicial Review of Municipal Agencies’ Sick Leave Policies

Paid sick leave is a significant benefit to public employees. But accompanying that benefit is the potential for abuse and fraud, with taxpayer dollars on the line. Municipal agencies walk a tightrope when taking steps to curb abuse. Certain agencies, particularly police departments, have very generous sick leave benefits. Concerned about abuse of those benefits, these agencies also have highly restrictive policies governing employees’ conduct while on sick leave. These policies prevent employees from leaving their homes for nonemergency reasons without a supervisor’s permission.

These restrictions can prevent employees on leave from, for example, attending religious services, going to family and political functions, and traveling, unless they first obtain permission. On numerous occasions, public employees have challenged the constitutionality of these policies, and some have succeeded. The current state of the law regarding these challenges is unsettled on multiple fronts—most importantly on the standard of review that courts should use to evaluate the policies’ constitutionality. This Comment proposes a framework for future decisionmakers and commentators to follow in evaluating the constitutionality of sick leave policies.