Court Could Erase Sick Leave Rights for 5 Million Workers

Posted February 2, 2012 in Labor and Employment by Courtney Sherwood

U.S. Supreme Court, photo by dbking.

The U.S. Supreme Court may rule that state governments can fire their workers just for calling in sick.

The Family and Medical Leave Act says employers have to allow workers to take unpaid time off if they’re ill or pregnant, or have to take care of a sick relative. But the State of Maryland fired a court administrator for following doctors’ orders, and now the state is heading to the U.S. Supreme Court to argue that government workers may not have the same protections as the rest of us.

Daniel Coleman’s been on the other side of that argument for more than four years. An administrator for Maryland’s court system, Coleman sued the state in 2007, after he was fired for calling in sick to work.

Maryland countered that the 11th Amendment to the Constitution, which says that citizens of one state cannot sue the government of another, has since been interpreted to protect states from cases like Coleman’s.  If Maryland wins, protections could evaporate for the more than 5 million people employed by the country’s 50 state governments.

Oddly enough, the Supreme Court has already ruled that workers can sue their state employers for denying Family and Medical Leave Act rights, according to Marcia L. McCormick, assistant professor at the St. Louis University School of Law. When a Nevada employee sued after he lost his state job while caring for a sick spouse, the court ruled that FMLA was valid because of its role in promoting gender equality – and because the Constitution allows for limits on state government aimed at disrupting discrimination.

After all, it’s still unusual for men to take time off to care for a spouse, “and certainly not consistent with stereotyped expectations of gender behavior,” according to McCormick.       

That’s where Daniel Coleman could run into trouble. A federal law that forces states to let a sick man to stay home to take care of himself hardly has much to do with sex discrimination. And the makeup of the U.S. Supreme Court has changed enough since its 2003 ruling against Nevada that even seasoned court watchers are not sure what to expect.

Regardless of the court’s ultimate ruling, the case has already inspired a few chiding comments from European observers. While much of the industrialized world requires paid leave for sick or pregnant workers, the U.S. only guarantees 12 weeks of unpaid time off. If the Supreme Court rules with Maryland, even those protections will be stripped away from state employees.

Reaction among American observers, however, has so far been relatively muted.

When lawmakers moved to limit state employees’ union rights in Wisconsin a year ago, the country witnessed a political eruption: heated rhetoric, loud debates, and thousands of people rallying to that state’s capital building. But a decision that could reach much deeper into the working lives of government employees across the country could soon emerge from a courthouse in Washington, D.C., with no more protest than a handful of petitions filed by Coleman’s supporters.

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