By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbagcasciacorg. _________________________________________________________________________________________

Dear Legal Mailbag:

One of the teachers in my school has terrible attendance. She has worked here for some ten years and, every year, she figures out a way to take off every day she can – sick time, personal time, you name it. She even asks for professional leave each year to “improve her craft. ” When the pattern continued in the current school year, I decided that I’d had enough. I called her in to my office, and I asked her what is going on with her. She gave me some feeble excuse about having a “delicate constitution,” but I wasn’t buying it. I told her that her pattern of attendance was unacceptable, and that I would have to refer her to the superintendent for dismissal proceedings unless I see significant improvement. Period.

I just got a call from the Superintendent. Apparently the teachers’ union called him to complain about my “bullying” this teacher. They accused me of denying the teacher union representation, and they claim that I had no right to raise attendance issues with the teacher. They claimed that she has been legitimately ill and that my harassing her could cause a relapse. Did I do anything wrong?

Signed,
Getting Sick Myself

Dear Getting:

I wasn’t there, and I don’t know if you were appropriately professional in your discussion with the teacher. But as a general premise you had every right to express your concern about the teacher’s attendance. Good attendance is important to effective instruction, and, conversely, one cannot teach if one is absent.

Some absences are unavoidable, of course, but teachers do make choices about when they call out sick. If you ignore attendance concerns, you convey the message that attendance does not matter. By contrast, when you meet with teachers to express concern about their attendance, you let them know that attendance does matter. Moreover, rest assured that your conversation got out to the rest of the teachers. By raising consciousness about good attendance – and your willingness to monitor it – you can change the culture of your school and improve attendance more generally.

As to the two issues raised by the union, I can advise you as follows. First, teachers do have the right to union representation when they meet with you, but only if three conditions are met. First, you must be asking questions of them; when you convey information unilaterally without asking for the teacher’s response, there is no right to union representation. Second, the teacher must reasonably fear for his/her job security. Third, union representation must be provided in such situations only if and when it is requested. The employer has no duty to notify a teacher of the right to union representation, and if the teacher does not request union representation, the right to such representation is waived. However, it is a common (and appropriate) courtesy to provide that warning (and even alert the union) when you want to talk to a teacher about an issue that could result in discipline.

Second, you cannot be held hostage to threats of “relapse.” You should be aware of a teacher’s right to reasonable accommodation in cases of disability. You should also be aware of your obligation to limit any requests for information about a teacher’s health condition to those that are necessary to make appropriate job-related decisions. However, you have every right to raise concerns about attendance. Indeed, in extreme cases teacher absenteeism can result in termination of employment, even when the absences are legitimate. Teachers and other employees with disabilities are entitled to reasonable accommodation where appropriate to perform the essential duties of the job. However, if a teacher is unable to attend school regularly, even for legitimate reasons, he/she is unable to perform the essential duties of the job – teaching children – and his/her employment is therefore subject to termination.