Ability of a School District Board of Directors to Grant Family Leave

SCHOOLS--DISTRICTS--EMPLOYERS AND EMPLOYEES--TEACHERS--SICK LEAVE‑‑FAMILY LEAVE--Ability of a School District Board of Directors to Grant Family Leave

1.   RCW 28A.400.300 requires school districts to grant employees a minimum of 10 days per year of leave for illness, injury, and emergencies.  The maximum leave that can be accrued for this purpose is 12 days per year.  Within this minimum and maximum a school district board of directors can define how such leave is to be used.  If the board defines leave for illness, injury, and emergencies so that it only applies to the employee's illness, injury, and emergencies, then the board has the authority to authorize employee leave beyond the 12-day limit to care for sick family members.

2.   RCW 49.12.270 requires employers to permit employees to use sick leave to care for their sick children.  RCW 49.12.270 does not limit the ability of a school district board of directors to allow family leave to care for sick family members beyond the 12-day limit for leave for illness, injury, and emergencies.

                                                                   * * * * * * * * * *

                                                                 February 8, 1993

Honorable Harriet Spanel
State Senator, District 40
412 John A. Cherberg Building
P. O. Box 40440
Olympia, WA  98504-0440                                                                     Cite as:  AGO 1993 No. 1

Dear Senator Spanel:

            By letter previously acknowledged you asked for our opinion on questions we paraphrase as:

            1.         Prior to the enactment of RCW 49.12.270, which authorizes employees to use sick leave to care for their sick children, did the board of directors of a school district have the authority to grant leave to employees to care for their sick children, in excess of the maximum 12 days of leave for illness, injury, and emergencies provided in RCW 28A.400.300(2)(c)?

            2.         After the enactment of RCW 49.12.270, which authorizes employees to use sick leave to care for their sick children, does the board of directors of a school district have the authority to grant leave to employees to care for their sick children, in excess of the maximum 12 days of leave for illness, injury, and emergencies provided in RCW 28A.400.300.(2)(c)?

            The answer to both Question 1 and Question 2 is a qualified yes.

                                                                BACKGROUND

            Your questions involve the interrelationship between two statutes:  RCW 28A.400.300 which authorizes a school district board of directors to grant leave to employees; and RCW 49.12.270 which authorizes employees to use their sick leave to care for their sick children.  RCW 28A.400.300[1]provides in pertinent part:

                        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 theboard 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;

                       . . . .

                        (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 shall continue in effect until contract expiration; after expiration, any new contract executed between the parties shall be consistent with this subsection;

                       . . . .

                        When any certificated or classified employee leaves one school district within the state and commences employment with another school district within the state, the employee shall retain the same seniority, leave benefits and other benefits that the employee had in his or her previous position:  PROVIDED . . . If the school district to which the person transfers has a different system for computing seniority, leave benefits, and other benefits, then the employee shall be granted the same seniority, leave benefits and other benefits as a person in that district who has similar occupational status and total years of service.

(Emphasis added.) 

            RCW 28A.400.300 provides that the board of directors of a school district shall adopt written policies granting leave to employees.  School districts may provide leave for a variety of purposes.  However, there are specific requirements for leave for illness, injury, and emergencies.  First, employees under contract with the district for a full year are entitled to accrue at least 10 days of such leave.  RCW 28A.400.300(2)(a).  Second, the accrual of annual leave for illness, injury, and emergencies is limited to a maximum of 12 days per year.  RCW 28A.400.300(2)(c).

            Although RCW 28A.400.300 requires the district to grant employees at least 10 days of leave for illness, injury, and emergencies, the statute does not define these terms or explain how such leave is to be used.  Each school district is free to adopt its own leave policies.  If school districts do adopt different leave policies, employees transferring from one district to another shall be entitled to the same leave benefits as employees in the new district with similar occupational status and total years of service.

            RCW 49.12.270 was enacted in 1988.  Laws of 1988, ch. 236, § 3, p. 1094.  The Legislature was concerned with the availability of leave for workers to care for their sick children, sometimes referred to as "family leave":

                        The legislature recognizes the changing nature of the work force brought about by increasing numbers of working mothers, single parent households, and dual career families.  The legislature finds that the needs of families must be balanced with the demands of the workplace to promote family stability and economic security.  The legislature further finds that it is in the public interest for employers to accommodate employees by providing reasonable leaves from work for family reasons.  In order to promote family stability, economic security, and the public interest, the legislature hereby establishes a minimum standard for family care.  Nothing contained in this act shall prohibit any employer from establishing family care standards more generous than the minimum standards set forth in this act.

Laws of 1988, ch. 236, § 1, p. 1094 (emphasis added).  Based on this legislative recognition the Legislature enacted RCW 49.12.270 which states:

                        An employer shall allow an employee to use the employee's accrued sick leave to care for a child of the employee under the age of eighteen with a health condition that requires treatment or supervision.  Use of leave other than accrued sick leave to care for a child under the circumstances described in this section shall be governed by the terms of the appropriate collective bargaining agreement or employer policy, as applicable.

Laws of 1988, ch. 236, § 3, p. 1094 (emphasis added).

            RCW 49.12.270 requires employers to allow employees to use their sick leave to care for their sick children as a matter of state law.  This is separate and apart from school district policy.  The statute establishes minimum standards.  It only applies to the sick child of an employee.  RCW 49.12.270 does not require an employer to allow an employee to use sick leave to care for another family member such as a spouse.  However, nothing in the law prohibits an employer from extending "family leave" to another family member beyond the minimum standards in RCW 49.12.270.  In addition, RCW 49.12.270 is limited to accrued sick leave.  Use of other leave to care for sick children or other family members is governed by the appropriate collective bargaining agreement or employer policy.

            With this background in mind, we turn to your questions.  We begin our analysis in Question 1 by focusing on the authority of the school district board of directors under RCW 28A.400.300, prior to the enactment of RCW 49.12.270.  Then, in Question 2, we will discuss the impact of RCW 49.12.270 on the authority of the board.

                                                                    ANALYSIS

            Question 1:

            Prior to the enactment of RCW 49.12.270, which authorizes employees to use sick leave to care for their sick children, did the board of directors of a school district have the authority to grant leave to employees to care for their sick children, in excess of the maximum 12 days of leave for illness, injury, and emergencies provided in RCW 28A.400.300(2)(c)?

            RCW 28A.400.300(2)(c) provides that employees can accrue a maximum of 12 days of leave per year for illness, injury, and emergencies.  You have asked whether a school district board of directors has the authority to grant "family leave"--that is, leave for employees to care for their sick children--above and beyond this 12-day limit.  The answer to this question depends on whether "family leave" constitutes "leave for illness, injury, and emergencies" subject to the 12-day limit.  If "family leave" falls within "leave for illness, injury, and emergencies", then the 12-day limit applies.  If "family leave" is not "leave for illness, injury, and emergencies", then the 12-day limit does not apply.[2]

            In our judgment school districts had the authority to grant "family leave" in excess of the 12 days maximum in RCW 28A.400.300(2)(c).  We reach this conclusion for two reasons.

            First, the Legislature granted a school district's board of directors substantial discretion to adopt policies with regard to employee leave.  RCW 28A.400.300 provides that the board of directors shall "[a]dopt written policies granting leaves . . .including but not limited to leaves for attendance at official or private institutes and conferences and sabbatical leaves . . . and leaves for illness, injury, bereavement and, emergencies".  (Emphasis added.)

            In AGO 1977 No. 27 we interpreted similar language in RCW 28B.50.551[3]which governs the authority of the board of trustees of a community college to grant leave for employees.  We said:

            Two things will be readily noted about this statute.  First,the statute is mandatory insofar as compensated leaves ". . . for illness, injury, bereavement and emergencies . . ." are concerned whereas it is permissive in the case of other types of leave.  And secondly, because it containsthe phrase ". . . including but not limited to. . ."  RCW 28B.50.551,supra,is broad enough to permit a community board of trustees to authorize other types of leaves than those specifically enumerated therein.

            Accordingly it follows, in our opinion, that a community college board of trustees is authorized to adopt written policies providing for "personal leave" for its employees in the exercise of its discretion.

AGO 1977 No. 27, at 6-7 (emphasis added).

            Of course, a school district's discretion with regard to leave for illness, injury, and emergencies is limited since RCW 28A.400.300(2) requires a minimum of 10 days up to a maximum of 12 days per year.  However, even within this minimum and maximum, a school district has discretion.  For example, in AGO 1980 No. 22 we considered RCW 28A.58.100(2)[4], a prior version of RCW 28A.400.300(2), which also contained the requirements for a minimum of 10 days up to a maximum of 12 days of leave for illness, injury, and emergencies.  The question was whether a school district could grant emergency leave separate from leave for illness and injury.  We concluded that the school district had this authority.  We said:

                        RCW 28A.58.100(2) still grants school districts the general authority to adopt written policies regarding various types of leave, including leave for illness, injury or emergencies.  This general authority is limited only by the proviso contained therein.  A proviso ordinarily acts as a limitation upon or an exception to the general statute to which it is attached.  Jepson v. Dept. of Labor and Industries, 89 Wn.2d 394, 573 P.2d 10 (1977).  And a proviso is also to be strictly construed, with any doubt to be resolved in favor of the general provisions rather than the exceptions.  State v. Wright, 84 Wn.2d 645, 652, 529 P.2d 453 (1974).

                        The proviso here in question . . . requires, among other things, that employees under contract for a full year be granted not less than ten days nor more than twelve days compensated annual leave for illness, injury and emergencies.  The phrase "illness, injury, and emergencies" is used in the conjunctive.  See, 1A Sutherland,Statutory Construction, § 21.14 (4th Ed. 1972).  Accordingly, the legislature must be deemed to have intended to require school districts to grant some compensated annual leave for each of those three reasons.

                        However, although the proviso thus requires all school districts to grant compensated annual leave for illness, injury and emergencies it does not purport to forbid those districts from making emergency leave a separate category from leave for illness and injury.  Accordingly, a school district could adopt a written policy to that effect by virtue of the general authority conferred by RCW 28A.58.100(2), supra.

                       . . . .

                       . . . the proviso to RCW 28A.58.100(2) does not forbid a school district from adopting a written policy allotting a specified number of days to emergency leave.  However, since the terms of the proviso require annual leave to be granted for "illness, injury, and emergencies," a district could not allot all of the ten days' annual leave it must grant or the twelve days it is allowed to grant either to emergency leave or to leave for illness or injury.

AGO 1980 No. 22, at 6-7, 10 (emphasis added).

            Thus, the board of directors of a school district have discretion, within certain limits, to make policy choices with regard to leave for illness, injury, and emergencies.  In our view, this discretion also gives a school district the ability to define how leave for illness, injury, and emergencies is to be used.

            We note that RCW 28A.400.300 does not define illness, injury, and emergencies or explain how such leave is to be used.  Instead, RCW 28A.400.300(2) provides that the "board of directors shall adopt written policies granting to [employees] annual leave with compensation for illness, injury and emergencies".  Since RCW 28A.400.300 does not specify whether "family leave" falls within leave for illness, injury, and emergencies, the board of directors has the discretion to make this decision.

            Of course, the board of directors does not have unlimited discretion.  Written policies adopted by the board governing leave for illness and injury must be reasonably related to illness and injury.  The board could not, for example, allow leave for illness and injury to be used to attend a conference.

            This brings us to our second point.  In our view, leave granted so that employees can care for their sick children is sufficiently related to illness and injury that, prior to the adoption of RCW 49.12.270, it would have been within the discretion of the board of directors to include such "family leave" within the definition of leave for illness and injury.

            Since RCW 28A.400.300 does not define the terms "illness" or "injury", these terms must be given their usual and ordinary meaning.  The court frequently turns to the dictionary to ascertain the common meaning of statutory language.  Marino Property v. Port of Seattle, 88 Wn.2d 822, 833, 567 P.2d 1125 (1977).  Webster's Third New International Dictionary defines "illness" as "an unhealthy condition of the body or mind".  Webster's Third New International Dictionary 1127 (1981).  The definition of "injury" is "hurt, damage or loss sustained . . . (suffered severe injuries in the accident)".  Id. at 1164.  Illness and injury are defined in terms of a type of condition.  These dictionary definitions do not address the identity of the victim of the illness or injury.  Clearly, leave for illness and injury is available if the employee is the victim.  However, these definitions do not foreclose the availability of leave for illness or injury if the employee is required to care for a sick child.

            We have found no Washington decision that deals with the definition of leave for illness or injury (or sick leave).  However, this issue is addressed by a decision of the California Supreme Court,Nelson v. Dean, 27 Cal. 2d 873, 168 P.2d 16 (1946).  Nelson concerned a California statute that authorized employees to take "twelve days of sick leave with pay for a calendar year of service".  168 P.2d at 18-9.  The question was whether an employee could take sick leave to care for a sick family member.  The court ruled that sick leave could be used to care for a sick family member.  The basis of the court's decision was that the State Personnel Board had defined sick leave to mean "absence from duty for an officer or employee because of his illness or injury . . . attendance upon a member of his immediate family seriously ill and requiring the care or attendance of such officer or employee".  Id. at 17.[5]

            Similarly, in this case we believe that a board of directors of a school district could define leave for illness and injury to include leave to care for sick children or other family members.

            On the other hand, this definition is not required by RCW 28A.400.300. Prior to the adoption of RCW 49.12.270, the board of directors could certainly limit leave for illness or injury to the employee.  Indeed, the Legislature's recognition of a need for minimum standards of family leave is testimony to the fact that sick leave was sometimes limited to the employee and was not available to care for sick children.

            Question 1 asks whether a school district, prior to the adoption of RCW 49.12.270, had the authority to grant "family leave" in addition to the 12 days of leave allowed for illness, injury, and emergencies.  Our answer is a qualified yes because it depends on the policy choice made by each school district.  If a school district has limited the definition of leave for illness, injury, and emergencies to the employees, then the district could grant additional leave so that employees can care for their sick children.  On the other hand, if a school district has defined leave for illness and injury to include leave to care for sick children, then the district cannot grant additional leave for that purpose because of the 12-day limit in RCW 28A.400.300(2)(c).

            QUESTION 2:

            After the enactment of RCW 49.12.270, which authorizes employees to use sick leave to care for their sick children, does the board of directors of a school district have the authority to grant leave to employees to care for their sick children, in excess of the maximum 12 days of leave for illness, injury, and emergencies provided in RCW 28A.400.300.(2)(c)?

            RCW 49.12.270 provides that an "employer shall allow an employee to use the employee's accrued sick leave to care for a child of the employee".  Clearly, school districts are employers and are therefore subject to RCW 49.12.270.  Although RCW 28A.400.300(2) refers to leave for illness and injury, we have no doubt that this is essentially a form of sick leave.  Webster's Third New International Dictionary defines "sick leave" as "a period of absence from duty due to illness or other disability . . . an allowance of paid leave specified in days or hours per month or year that is granted to employees or salaried personnel for absence due to illness or other disability."  Webster's Third New International Dictionary 2111 (1981).  Accordingly, the primary effect of RCW 49.12.270 is to require all school districts to allow employees to use the leave required by RCW 28A.400.300(2) for illness, injury, and emergencies to care for their sick children.[6]  However, school districts are not required to adopt policies which include family leave within the definition of "illness, injury, and emergencies" and thus make such leave subject to the 12-day limit.

            The thrust of Question 2 is whether RCW 49.12.270 limits a school district's discretion to allow leave to care for a sick child beyond the 12-day maximum leave for illness, injury, and emergencies.  As we explained in Question 1, if a school district adopted a policy which allowed an employee to use leave authorized for illness, injury, and emergencies to care for a sick child, the 12-day limit would apply.  It might be argued RCW 49.12.270 also triggers the 12-day limit in RCW 28A.400.300(2)(c) because RCW 49.12.270 authorizes an employer to permit an employee to use the leave granted by RCW 28A.400.300(2) to care for a sick child.[7]

            We do not believe that this argument is well taken and, therefore, the answer to Question 2 is a qualified yes.  In interpreting a statute it is the duty of the court to

            ascertain and give effect to the intent and purpose of the legislature, as expressed in the act.  The act must be construed as a whole, and effect should be given to all the language used.  Also, all of the provisions of the act must be considered in their relation to each other and, if possible, harmonized to insure proper construction of each provision.

Burlington Northern, Inc. v. Johnston, 89 Wn.2d 321, 326, 572 P.2d 1085 (1977).

            When we apply these principles to RCW 49.12.270, we conclude that the Legislature did not intend to restrict the discretion of the school district board of directors to allow "family leave" beyond the 12-day maximum in RCW 28A.400.300(2)(c).  RCW 49.12.270 states that use "of leave other than accrued sick leave to care for a child under the circumstances described in this section shall be governed by the terms of the appropriate collective bargaining agreement or employer policy, as applicable."

            The Legislature also provided that "[n]othing in this act [permitting use of sick leave to care for a sick child] shall be construed to reduce any provision in a collective bargaining agreement."  Laws of 1988, ch. 236, § 6, p. 1095.  In addition, the Legislature stated that "[n]othing contained in this act [permitting use of sick leave to care for a sick child] shall prohibit any employer from establishing family care standards more generous than the minimum standards set forth in this act."  Id., § 1, p. 1094.

            In Question 1 we concluded that a school district had the authority to allow "family leave" beyond the 12-day maximum set forth in RCW 28A.400.300(2)(c).  These provisions of the act (Laws of 1988, ch. 236), establishing minimum family leave to care for sick children, persuade us that the Legislature did not intend to restrict that authority.

            The actual impact of RCW 49.12.270 will vary from district to district depending on the guidelines adopted by the board of directors governing leave for illness, injury, and emergencies.  In a district that allows employees to use leave for illness, injury, and emergencies to care for their sick children, there will likely be little or no impact since RCW 49.12.270 requires what the district is already doing.

            A district that did not allow employees to use leave for illness, injury, and emergencies to care for their sick children would be required to allow this minimum "family leave".  This would also be true for a district that did not allow leave for illness, injury, and emergencies to be used for this purpose, but had granted "family leave" above and beyond the 12-day maximum in RCW 28A.400.300(2)(c).  Thus, if a district allowed three days of "family leave" to care for a sick child in addition to the 10 days of leave for illness, injury, and emergencies, required by RCW 28A.400.300(2)(a), an employee would have 13 days that could be used to care for a sick child.

            It is important to note that RCW 49.12.270 does not require an employer to grant "family leave" in addition to sick leave.  Therefore, a school district remains free to reconsider this policy.[8]  A district could choose to discontinue allowing family leave in addition to the leave required by RCW 28A.400.300(2) for illness, injury, and emergencies.

            We trust that this opinion will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        WILLIAM B. COLLINS
                                                                        Assistant Attorney General

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