The question has been raised as to a public employer’s ability to restrict an employee’s outside employment and how it relates to sick leave.  Specifically, can a public employer restrict an employee’s outside employment if the employee has reported absent on sick leave, but during an employee’s off-duty time.  Specifically, if an employee has reported absent on sick leave, can a public employer restrict the employee’s outside employment until the employee reports he or she is fit to return to duty.

The analysis begins with identifying the rights of the various parties, in this case the public employee and the public employer.  The public employee has the constitutional right to pursue employment on off duty time.  On the other hand, the public employer has the right to conduct its business efficiently.

The analysis next jumps to the burden placed upon the public employer to substantiate its actions as they relate to its right to restrict the public employee’s pursuit of outside employment. 

One standard used by the courts is identified as the “strict scrutiny” test.  If this test was used, the public employer would have to demonstrate a “compelling interest” to justify its actions, a difficult burden to meet.             

An alternate test is identified as the “rational basis” test.  In this test, the public employer need only show a “rational basis” for its action, a much lesser burden and easier to meet. 

Finally, there is a balancing test known as “intermediate scrutiny”.

In Competello v. LaBruno, a recent Federal Court decision, one count of the public employee’s complaint was based on the Hoboken Police Department’s sick leave policy, which required “employees who are sick, and therefore do not come to work, to remain confined in their homes for 24 hours a day unless they leave for medical reasons.” Competello claimed that this policy violated the United States and the New Jersey Constitutions.

The Federal Court held that an intermediate scrutiny standard is appropriate when a public employee alleges that a public employer has violated his fundamental rights because of the competing interests involved in the case.  The Court held:

There are various competing policies to consider when deciding upon a standard of review for this sort of case.  On one hand, there is the need to protect all individuals, including public employees, from undue infringement on fundamental rights enumerated in the Bill of Rights.  On the other hand is the importance of giving state governments leeway when they are acting as an employer, so that they can conduct their businesses efficiently.  As such, as was discussed in this opinion in the section dealing with Competello’s First Amendment free speech claims, the courts have limited the rights of public employees.  This second consideration becomes more compelling when the public employer at issue is a Police Department, which is responsible for securing the public safety of the community it protects.  Thus, strict scrutiny seems too exacting a standard to apply in order to ensure that the Police Department can issue regulations that enhance its ability to protect the community. 

Based on this principle, a public employer very well may have the right to restrict the outside employment of public employees during their period of sick leave.  The public employer would have to argue and substantiate that placing restrictions on outside employment would substantially further the following state interest:  When a public employee is out on sick leave, other employees have to compensate for his or her absence.  It is in the interest of the public employer to ensure that their sick leave privileges are not being abused.  This argument is given even more credence when public safety employees are involved.

Additionally, a public employee’s first employment priority must be with the public employer, and outside employment must be deemed secondary.  A rule that restricts the outside employment of a public employee absent on sick leave would allow the public employer to uphold the validity of its sick leave policy; ensure that the municipality is properly staffed at all times; and, support its demand that public employees place their public employment as a priority above all other employment opportunities.  As stated in Competello, “Unnecessary or unauthorized absences detract from the efficient delivery of services to the public which we serve, and unfairly impact upon the safety and job satisfaction of other employees who are required to shoulder the burden of an increased workload.” 

Placing a restriction on outside employment during the period when a public employee is on sick leave will ensure that the leave is being taken for a legitimate reason.