The Right to Be Healthy: Supreme Court Weighs Sick Leave for State Workers

One day in August 2007, Daniel Coleman, an administrator in the Maryland court system, decided he should stay home to recover from an illness, as his doctor had ordered. But the day after he requested time off, he suddenly had more to worry about than his health; he was unemployed, too.

In many industrialized countries around the world, taking time off from work to deal with a medical issue isn't just a benefit; it's considered an entitlement, as much as an eight-hour day. But in the world's richest nation, a worker who claims that right has had to appeal to the highest court in the land.

So the Supreme Court will now weigh the rights of public employees to seek justice under the Family and Medical Leave Act (FMLA). The case, Coleman v. Maryland Court of Appeals, is based on Coleman's lawsuit alleging that he was unfairly terminated following a dispute with his supervisor over leave time. Pitting Coleman, together with many civil rights advocates, against Maryland and 26 other states, the central question is whether a state can be held accountable under the law as a private employer would.

The FMLA basically allows workers to take 12 weeks of unpaid time off to deal with either a personal or family health concern. Although a worker at a private company can clearly sue for monetary damages if she is fired for taking time off for pregnancy or to care for a sick child--some courts have ruled differently for state workers' rights. A lower court found that Maryland is shielded from legal liability in this case under the Eleventh Amendment sovereign immunity clause.

The issue before the Court isn't just a question of workers' medical rights when they fall seriously ill, but of the state's obligation to to its employees. Gender matters, too; the FMLA, under the Equal Protection clause, was designed to counter employment discrimination based on women's medical issues, like childbirth. (But the "self-care" provision in the Coleman case covers both men and women.)

A coalition of groups, including the National Partnership for Women & Families, unions, and the ACLU, argued in a friend-of-the-court brief:

The FMLA's leave provisions and job protections would be rendered meaningless unless eligible employees - including those who work for state governments - can request and take leave without fear of reprisal.

The Partnership noted, "Retaliation against employees who assert their entitlement to federally protected leave is woefully common." In a similar recent case, Larry McKlintic was dismissed from his job with the government of Missouri "after he requested time off for back surgery."

According to federal labor enforcement data for 2001 to 2008, employees have brought hundreds of complaints annually for violations such as unfairly discriminating against or terminating workers who are entitled to leave, or refusing to restore them to a comparable position afterwards.

On an individual level, the threat of retaliation from a boss over medical issues may endanger job security or put a worker's health at risk. But it also leads to a culture of silence at a workplace, broadly deterring people from standing up to abuse or calling out bad working conditions.

The FMLA is just one piece of the debate. While it protects unpaid leave, there is no such federal guarantee of paid medical leave. This benefit remains inaccessible to a huge portion of the workforce, despite evidence that it has major social and economic benefits, particularly for working women. By contrast, workers in Europe often enjoy offer far more generous leave policies.

The lack of comprehensive paid leave policies aggravates inequality in the workforce. Human Rights Watch pointed out in a 2011 study, "Roughly two-thirds of civilian workers have some paid sick leave, but only about a fifth of low-income workers do. Several studies have found that the number of employers voluntarily offering paid family leave is declining."

Sarah Crawford, director of workplace fairness at the National Partnership for Women & Families told In These Times:

At stake in this case is the ability of millions of state workers around the country to effectively exercise their rights to take self-care leave under the FMLA -- that means to care for their own serious medical conditions, including pregnancy or recovery from childbirth. Without potential liability for monetary damages for violating the FMLA, there is little to deter states from violating the law.

Crawford added that the issues in the case also tie generally into state employees' rights to seek redress under federal labor law.

The Coleman case comes amid a growing climate of hostility toward public workers. The past several months have seen a cascade of attacks on the collective bargaining rights of public workers. A law to strip down union rights in Wisconsin has sparked a massive recall election campaign. Conservatives in Ohio and New Hampshire have pushed similar measures to weaken labor's clout in public agencies. With the "right-to-work" mantra steadily creeping into the discourse of the presidential race, unions nationwide are under siege.

Daniel Coleman thought he was just asking for time off from work, but he got a lot more than he expected. First, he was punished with economic hardship, and today, he represents countless public workers who can't afford another assault on their health.

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