Wood Dale teacher entitled to sick-leave pay for having baby by surrogate

 
 
Updated 3/13/2020 5:35 PM

A DuPage County judge Friday ordered Wood Dale Elementary District 7 to pay $6,828 in sick pay to a teacher who took time off after her son was born via a surrogate.

Judge Bonnie Wheaton agreed with the attorney for special-education teacher Staci Rafferty, who argued that the Illinois School Code requires districts to allow employees to use paid sick time for such a thing, even though the law mentions only "birth, adoption, or placement for adoption."

                                                                                                                                                                                                                       
 

Her attorney argued that the School Code differentiated birth from other conditions where sick pay can be used, in part because it allows districts to require a note from a health care provider for absences of more than three days for illnesses but allows 30 days for birth or adoption before a note is required.

The district argued that common and legal dictionaries define the word "birth" as a physical act of an infant leaving a woman's body, and that sick time is supposed to be for when people are physically incapable of performing their jobs. Rafferty did not suffer physical incapacity because another woman bore the baby, the district argued.

Extending it to cover situations such as Rafferty's is really a backdoor way of establishing paid parental leave in Illinois, the district argued. Its position is that the matter should be left up to state legislators or negotiated for in teachers' contracts.

Her attorney argued parenting by surrogacy is closely akin to becoming a parent by adoption, for which the School Code allows paid sick leave.

The district disagreed and noted the adoption provision only applies for the days the adoption is underway; once the adoption is completed, there's no paid sick leave.

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It is the second time in recent years the district has been sued over the issue of sick leave for a new parent. The Illinois Supreme Court heard an appeal in January of a ruling Wheaton made regarding a teacher who had a baby the day before the end of a school year in 2016.

That teacher used 1½ paid sick days that school year and wanted to use the rest when school resumed in the fall, but the district denied that.

Rafferty's baby was born April 5. She ended up taking 20 days of unpaid leave. The other 10 days were paid sick leave because they were for doctor appointments and medical procedures for the boy, and sick-day payment is mandated for caring for an ill member of the immediate family.

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