Work-place Injuries Causing Interruption In Service Do Not Prevent Teachers From Attaining Tenure

On May 8, 2015, the Appellate Court addressed the issue of whether a petitioner, who was on medical leave for a work-related injury, attained tenure despite an interruption in service. In Kowalsky v. State-Operated School District of the City of Newark, Essex County, a petitioner worked as a teacher for two months before he was severely beaten by a student in November, 2005. The authorized treating physician did not return him to work until October, 2006. The petitioner worked for 11 months and was again placed out of work for the 2006-2007, 2007-2008, and 2008-2009 school years. The petitioner returned to work on September 1, 2009. While he was out of work, he was provided full salary, health insurance, and pension contributions.

The petitioner worked for the 2009-2010 school year. During the 2010-2011 and 2011-2012 school years, he was evaluated as a tenured teacher. On August 2, 2012, the petitioner received notice that his position was terminated due to his non-tenured status coupled with budgetary restraints.

The ALJ determined that the petitioner achieved tenured status and stated that he was an employee for three years and one day in a four year period because pension and other benefit contributions were continuously made on his behalf. The Commissioner rejected the ALJ’s determination and found that the petitioner had not achieved tenured status.

The Appellate Court reviewed the Tenure Act and noted that continuous employment exists notwithstanding the mere occasional absence of a teacher by reason of illness or excuse. In determining that the petitioner achieved tenured status, the Appellate Court considered the fact that the Board of Education evaluated the petitioner’s performance and provided full salary, health insurance, and pension contributions. The Appellate Court reinstated the ALJ’s determination that the District recognize the petitioner’s right to tenure and reinstate him retroactive to September 1, 2012, together with the salary and benefits owed to him, less monies earned during the period of unlawful termination.

Date Published: March 1, 2017


Written by: Cooper Levenson, P.A.

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