Request By:
Hon. John J. Slattery, Jr.
General Counsel
Kentucky Education Association
101 West Muhammad Ali Boulevard
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
As General Counsel for the Kentucky Education Association, you have asked the Office of the Attorney General to consider several issues concerning sick leave pay for teachers under KRS 161.155. The background information for your questions was stated by you as follows:
"A teacher anticipates absence from teaching duties due to disability caused by childbirth, and she has sufficient accumulated sick leave to cover anticipated period of absence. The teacher has advised school officials that she plans to use sick leave days for the absence caused by childbirth.
However, the teacher has stated that she does not wish to use sick leave days for paid holidays (for the observance of Thanksgiving, Christmas and New Years Day) in the school calendar. The advice to school officials states that she anticipates payment for the holidays and that such payment will not be chargeable to her accumulated sick leave. "
You continue that it is the position of the involved school district that the teacher in question cannot be paid for the holidays unless she uses accumulated sick leave days. You have asked this office to address this matter and determine the manner in which KRS 161.155 is to be applied. As an aside, you have asked us to consider whether the same or different conclusion is to be reached if the teacher was on an unpaid leave of absence pursuant to KRS 161.770 due to maternity disability.
It is our belief your questions have not previously been addressed by this office. The situation involving the unusual circumstances of "calamity days" and the use of sick leave days discussed in OAG 78-311, copy attached, is readily distinguishable from the situation you have presented.
As to your primary question, we would take the position that the teacher is entitled to be paid for the holidays authorized by KRS 158.070(3) without the payment being charged to accumulated sick leave. This office explained in some detail our position on the use of sick leave by teachers, including its use due to pregnancy disability, in OAG 80-151. You are familiar with that opinion and even more so with KRS 161.155, specifically subsection (2). This provision reads:
"(2) Each district board of education shall allow to each teacher in its common school system not less than ten (10) days of sick leave during each school year, without deduction of salary. Sick leave shall be granted to a teacher if he presents a personal affidavit or a certificate of a physician stating that the teacher was ill or that the teacher was absent for the purpose of attending to a member of his immediate family who was ill. The ten (10) days of sick leave herein granted may be taken by a teacher on any ten (10) days of the school year and shall be granted in addition to accumulated sick leave days that have been credited to the teacher under the provisions of subsection (3) of this section."
We believe it to be quite evident that a teacher may take his or her sick leave days on any day of the school year upon compliance with the statutorily required presentation of a personal affidavit or certificate of a physician or as provided for by an appropriately adopted regulation or policy of a local board of education. A teacher is certainly not going to take a sick leave day when the schools are already closed for a paid holiday. The teacher does not need a leave of absence with pay for a day teachers are entitled to be paid for by operation of law. See again KRS 158.070.
We do, however, reach a contrary conclusion when a teacher has assumed the unpaid leave of absence status authorized by KRS 161.770. Just as we stated in OAG 80-151, supra, at page 6, that when a teacher has been approved to go on an unpaid leave of absence pursuant to KRS 161.770 for disability reasons he or she is no longer entitled to use accumulated sick leave days, we believe a teacher on leave of absence under KRS 161.770 fails to be entitled to pay for any holidays occurring during that absence.
We trust our consideration of this matter will be of assistance to you and all who are concerned with education throughout the Commonwealth.