Understanding Leave Options in the Federal Workplace and Misconduct Implications

Understanding Leave Options

in the Federal Workplace

and

Misconduct Implications

July 20, 2016

Federal

Leave System

Leave Objectives

• Overview of the Federal Leave System, with a focus on leave

used for medical purposes

• Roles and responsibilities: Congress, President , OPM,

Agencies

• Managers’ and employees’ rights and responsibilities

• Knowledge of differences between entitlements and

flexibilities

• Specifics of medical documentation

• Familiarity with sources of helpful information and guidance

Positive Impact of Leave Programs

• For Agencies—

 Key element to making Federal Government employer-

of-

choice

 Critical leverage on morale and productivity

 Higher levels of employee satisfaction and commitment

 Less unwanted turnover of high-

performing employees

 Responsiveness and continuity of operations during

mergencies

• For Employees—

 Greater work/life balance

 Fewer distractions and multi-

tasking to meet competing

work/life demands

 Minimizes impact of inevitable life crises

Roles and Responsibilities

• Congress—Enacts laws on leave, codified in title 5 of the United

States Code (5 U.S.C.)

• President—Is

sues an Executive Order or Presidential

Memorandum

• OPM—



Issues regulations in Title 5, Code of Federal Regulations

(5 CFR) in response to legislation, when applicable; and/or

 Issues guidance to Heads of Executive Departments and

Agencies or Chief Human Capital Officers

 Delegates authority to agencies to set certain agency policies

Roles and Responsibilities (continued)

• Agencies—

 Head of the agency is given the authority for the administration

leave for his/her agency

 Consistent wi

th law and regulations, establish agency-specific

policies associated with the leave program

 When establishing agency policies must be consistent with

rrent law, regulations, OPM guidance, current policy and any

applicable collective bargaining agreement

Entitlements vs. Discretionary

Programs and Flexibilities

• Entitlements

 Identifying language

 Will

 Shall

 Examples—Entitlement to:

 Annual leave

 FMLA leave (e.g., 5 CFR 630.1203 Leave Entitlement)

 Sick leave

Entitlements vs. Discretionary

Programs and Flexibilities

• Discretionary Programs/Elements and Flexibilities

 Identifying language: May

• Discretionary Programs and Flexibilities

 Advanced annual and sick leave (discretionary program)

 Service credit for qualifying non-Federal work experience

(

flexibility)

 Flexibilities

 Purpose—to help agencies meet their strategic human capital

needs

• Discretionary Elements of Entitlement Programs

 Scheduling of annual leave



Intermittent use of FMLA leave for childbirth, adoption, and

foster care

Federal Leave Programs and Policies

• Annual Leave

• Sick Leave (General)

• Sick Leave for Family Care and

Bereavement

• Sick Leave to Care for a Family

Member with a Serious Health

Condition

• Sick Leave for Birth or Adoption

• Leave Sharing (VLTP, VLTB, ELTP,

and VLTP for Combat-Related

Disability)

• Family and Medical Leave Act

(FMLA)

• Leave Without Pay

• Absence Without Leave

• Military Leave

• Court Leave

• Organ/Bone Marrow Donation

• Excused Absence

• 5 Days of Excused Absence for

eturning Reservists

• Home Leave

• Shore Leave

• Funeral Leave

Leave Used For Medical Purposes

• Annual Leave

• Sick Leave

• FMLA

• Leave Transfer/Leave Bank

Annual Leave

• Annual leave may be used for—

 vacations;

 rest and relaxation;

 personal business; and/or

 emergencies

Annual Leave Accrual

• Employees earn annual leave each pay period based on years of

creditable service

• Creditable Service– Accr

ual Rates

0 to 3 years* 13 days per year

3 to 15 years* 20 days per year

15 or more years* 26 days per year

*Includes military time except for most military retirees

• SES, SL, ST positions, and certain employees in “SES, SL, ST

equ

ivalent” positions accrue 8 hours of annual leave each pay

period regardless of creditable service

Approval of Annual Leave

• Employee has a right to request leave, subject to the right of

the supervisor to approve the time at which the leave may be

taken

• Employees are not required to explain how they plan to use

the annual leave, but in the absence of this information, the

request may be denied based on the office’s workload

• To address office workload needs, managers may—if

necessary—ask an employee’s reason for requesting annual

leave

Advanced Annual Leave

• Discretionary—a supervisor may grant advanced annual leave

consistent with the agency’s leave policy

• The amount of annual leave that may be advanced may not

exceed the amount of annual leave the employee will accrue

in the remainder of the leave year

• Employees do not have an entitlement to advanced annual

leave

Indebtedness for

Advanced Annual Leave

• An agency should not advance annual leave if it is known (or

reasonably expected) that the employee will not return to

duty

• If an employee indebted for advanced annual leave separates

from Federal service, he or she must repay the agency by—

 Refunding the amount of unearned leave, or

 Having agency deduct the owed amount from any pay due the

ployee

• If employee dies, retires on disability, or separates as a result

of a disability, he or she does not have to repay the debt

Sick Leave

Sick Leave Accrual and Accumulation

• Sick leave is earned and used based on leave year, as

defined in 5 CFR 630.201

• Sick leave accrual

 FT employee: ½ day (4 hours) per biweekly pay

per

iod

 PT employee: 1 hour for each 20 hours in a pay

atus

 Uncommon tour of duty: pro-r

ated based on

number of hours in employee’s biweekly tour of duty

•

Maximum annual carryover balance is unlimited

Types of Sick Leave

• An employee is entitled to use sick leave for-

 personal medical needs

 family care or bereavement

 care of a family member with a serious health

condition

 adoption-related purposes

Sick Leave Use for Personal Needs

• An employee is entitled to use sick leave when he or she

 Is incapacitated for the performance of duties by physical or

mental illness, injury, pregnancy, or childbirth

 Receives medical, dental, or optical examination or treatment,

 Would, as determined by the health authorities or a healthcare

ovider, jeopardize the health of others by his or her presence

on the job because of exposure to a communicable disease

• There is no limit on the amount of sick leave an employee

may use for his or her own personal needs

Definition of Family Member

Family member means an individual with any of the following

relationships to the employee:

• Spouse, and parents thereof;

• Sons and daughters, and spouses thereof;

• Parents, and spouses thereof;

• Brothers and sisters, and spouses thereof;

• Grandparents and grandchildren, and spouses thereof;

• Domestic partner and parents thereof, including domestic partners

f any individual in paragraphs 2 through 5 of this definition; and

• Any individual related by blood or affinity whose close association

wit

h the employee is the equivalent of a family relationship

Sick Leave Use for

Family Care and Bereavement

Most employees may use up to 13 days of sick leave each leave

year to

• Provide care for a family member incapacitated as a result of

physical or mental illness, injury, pregnancy, or childbirth

• Provide care for a family member receiving medical, dental, or

tical examination or treatment

• Make arrangements for, or attend the funeral of, a family member;

• Provide care for a family member w

ho would, as determined by the

health authorities or by a health care provider, jeopardize the health

of others because of exposure to a communicable disease

Sick Leave to Care for a Family Member

with a Serious Health Condition

• An employee may use up to 12 administrative workweeks of

sick leave each leave year to care for a family member with a

serious health condition

• Serious health condition has the same meaning as used in

OPM’s regulations for administering the Family and Medical

Leave Act (FMLA)

• Any days the employee has already used for general family

care and bereavement in the same leave year must be

subtracted from the 12 weeks

Definition of Serious Health Condition

(for both Sick Leave and FMLA)

A serious health condition under FMLA (also used for sick leave) is

defined as, but not limited to, an illness, injury, impairment, or

physical or mental condition that involves

• Inpatient care

• Continuing treatment by a health care provider, which may include

 A period of incapacity of more than 3 consecutive days

 Any period of incapacity due to pregnancy or childbirth, or for prenatal

care

 Any period of incapacity or treatment for such incapacity due to a

chronic serious health condition

 A period of incapacity which is permanent or long-term due to a

condition for which treatment may not be effective

 Any period of absence to receive multiple treatments for restorative

surgery or for a condition that would result in incapacity of 3 calendar

days if not treated (e.g., chemotherapy, dialysis, etc.)

Sick Leave for Adoption

• An employee may use sick leave for any activity necessary

for an adoption to proceed (e.g., court proceedings,

appointments with adoption agencies, social workers, and

attorneys)

• There is no limit on the amount of sick leave that may used

for adoption purposes

• Sick leave may not be used by an adoptive parent who

voluntarily chooses to be absent from work to bond with or

care for a healthy adopted child

• Sick leave may be used if the parent is required by the

adoption agency or the court to bond with a healthy child

Advanced Sick Leave

240 Hours: An agency may advance up to 240 hours (30 days)

of sick leave to an employee

• who is incapacitated for the performance of his or her duties by

physical or mental illness, injury, pregnancy, or childbirth;

• for a serious health condition of the employee or a family member;

• when the employee would, as determined by the health authorities,

opardize the health of others by his or her presence on the job

because of exposure to a communicable disease;

• for purposes relating to the adoption of a child; or

• for the care of a covered se

rvicemember with a serious injury or

illness when the employee is using the FMLA leave to care for a

covered servicemember

Advanced Sick Leave (cont.)

104 Hours: An agency may advance up to 104 hours (13 days)

of sick leave to an employee for

• his or her own medical appointments;

• general care for a family member or to accompany a family

member to medical appointments;

• care of a family member who would, as determined by the health

authorities, jeopardize the health of others by that family

member’s presence in the community because of exposure to a

communicable disease; or

• making arrangements necessitated by the death of a family

member or to attend the funeral of a family member

Advanced Sick Leave Indebtedness

• An agency should not advance sick leave if it is known (or

reasonably expected) that the employee will not return to duty

• If an employee who is indebted for advanced sick leave separates

rom Federal service, he or she is required to repay the agency by—

 Refunding the amount of unearned leave, or

 Having the agency deduct the amount owed from any pay due to

the employee

• If an employee dies, retires on disability, or separates as a result of

a disability, he or she is not required to repay the debt

Sick Leave Limitations

• Unlimited for personal use or adoption purposes

• General family care and bereavement: 104 hours per leave

year (13 workdays)

• Care for a family member with serious health condition: 480

hours (12 weeks) per leave year

• 480 hours (12 weeks) is the maximum for any combination of

family care, bereavement, serious health condition of family

member

• Up to 104 (13 days) or 240 hours (12 weeks) may be

advanced based on the purposes for which it will be used

Requesting Sick Leave

• An employee must file an application for sick leave, either

oral, written, or electronic as required by the agency within

the time limits set by the agency

• An employee must request advanced approval for medical,

dental, or optical examination or treatment

• To the extent possible, sick leave should be requested in

advance

Administratively Acceptable Evidence

• Agency may grant sick leave only when supported by

administratively acceptable evidence

• OPM does not specify what administratively acceptable

evidence is

• May consider employee’s self-certification, no matter the

duration

• May require a medical certification or other administratively

acceptable evidence for the absence

 If absence is in excess of 3 days

 For shorter periods when necessary

Medical Documentation Deadlines

• An employee must provide administratively acceptable

evidence or medical certification no later than 15 calendar

days after the date requested by the agency

• If the above is not practicable despite the employee’s

diligent, good-faith efforts, must provide within a reasonable

period of time, but no later than 30 calendar days after

agency request

• An employee who does not provide the required

documentation within the specified time frames is not

entitled to sick leave

Family and Medical Leave Act (FMLA)

FMLA Coverage

• Department of Labor--Administers title I of the FMLA which

covers private sector, State and local government, and some

Federal employees

• OPM--Administers title II of the Family and Medical Leave

Act, which covers most Federal employees

• Eligible employees are those

 Defined as employees in 5 U.S.C. 6301(2) (excluding those under 5

CFR 630.1201(b)(2) (some exceptions include employees on

temporary NTE 1-year appointments, and intermittent employees)

 Who have completed 12 months of service (not required to be recent

consecutive months)

FMLA Entitlements

Under FMLA, employees are entitled to use up to 12 weeks of

unpaid leave during any 12-month period for

• Birth of a son or daughter and care of the newborn (within 1 year of

birth);

• Placement of a son or daughter with the employee for adoption or

oster care (within 1 year of placement);

• Care of a spouse, son or daughter, or parent with a serious health

ondition;

• A serious health condition of the employee that makes the employee

nable to perform the duties of his or her position; or

• For any qualifying exigency arising out of the fact that the spouse, or a

on, daughter, or parent of the employee is on covered active duty (or

has been notified of an impending call or order to covered active

duty) in the Armed Forces

Family Purposes and Medical Purposes

• It is important to note that FMLA covers both family

purposes and medical purposes

 Family

 Birth

 Adoption

 Qualifying exigencies

 Medical

 Employee’s serious health condition

 Family member’s serious health condition

• FMLA for birth and adoption is for care and bonding

purposes, so can be used for healthy newborn or child

FMLA Definitions

• The term “family member” is not used in FMLA regulations

• Employee can take FMLA leave only to care for

 Spouse (opposite or same sex)

 Son or daughter

 Parent

• Parent means a biological parent or an individual who stands or

stood in loco parentis to employee when employee was a minor,

but does not include parents-in-law

• Spouse includes common-la

w marriage in States where it is

recognized

• Son or daughter me

ans a biological, adopted, or foster child; a

step child; a legal ward; or a child of a person standing in loco

parentis who is

 Under 18 years of age

 18 years of age or older and incapable of self-car

e because of a

mental or physical disability

FMLA Definitions (cont.)

• A son or daughter incapable of self-care requires active

assistance or supervision to provide daily self-care in three

or more of the “activities of daily living” (ADLs) or

“instrumental activities of daily living” (IADLs)

• Activities of daily living include adaptive activities such as

caring appropriately for one's grooming and hygiene,

bathing, dressing, and eating

FMLA Definitions (cont.)

• Instrumental activities of daily living include cooking,

cleaning, shopping, taking public transportation, paying bills,

maintaining a residence, using the telephones and

directories, using a post office, etc.

• A “physical or mental disability” refers to a physical or

mental impairment that substantially limits one or more of

the major life activities of an individual as defined in 29 CFR

1630.2 (h), (i) and (j)

FMLA Definitions (cont.)

A serious health condition does not include

• Routine physical, eye, dental exams

• A condition requiring over-th

e-counter medications, exercise, bed-

rest

• Cosmetic treatments (unless in-p

atient)

• Employee’s absence because of use of an illegal substance (unless

eceiving treatment for substance abuse)

• Common cold, flu (with the exception of pandemic influenza),

araches, upset stomach, minor ulcers, headaches (other than

migraines), routine dental problems (unless complications arise)

Requesting Leave under FMLA

• Employee must invoke entitlement to FMLA leave

• An agency cannot put an employee on FMLA leave

• An employee may take only the amount of FMLA leave

required by the circumstances

• Generally, FMLA may not be invoked retroactively

Notice of Leave – Foreseeable Need

• When need for leave is foreseeable employee must provide 30

calendar days’ notice of intent to take leave

• If date of birth or placement requires leave in less than 30

alendar days, employee must give notice as soon as practicable

• Employee must make reasonable effort to schedule planned

med

ical treatment so as not to disrupt agency operations

• If employee does not give notice within 30 days with no

easonable explanation, agency may delay leave until 30 days after

notice

•

Agency may waive 30-day notice and replace with agency’s usual

and customary procedures for providing notice , but requirements

may not be more stringent

Notice of Leave – Unforeseeable Need

• If the need for leave is not foreseeable (medical emergency,

unexpected availability of a child for placement), the

employee must give notice as soon as practicable before or

during the period of absence

• If the need for leave is not foreseeable and the employee is

unable to give notice due to circumstances beyond his or her

control, the leave may not be delayed or denied

Intermittent or Reduced Schedule

• Intermittent or reduced schedule may be used when

medically necessary for serious health condition of

employee or employee’s spouse, son, daughter, or parent

• Intermittent or reduced schedule may not be used for birth

or adoption/foster care unless agency and employee both

agree to this

Protection of Employment

• Upon completion of FMLA leave, employee must be restored to

 Same position

 Equivalent position with equivalent benefits, pay, status, and other

erms and conditions of employment

• Employee may file a grievance if agency does not comply with

FMLA rights and requirements

• An employee’s request for FMLA leave does not prevent an agency

rom taking appropriate adverse or performance-based actions

• An employee on FMLA leave is not immune from the impact of RIF

fore, during, or after the period of FMLA leave

FMLA Grievances

• Congress provided OPM with no FMLA oversight function;

therefore OPM has no authority to investigate employee

FMLA complaints (Congress did give this function to DOL for

their FMLA regulations)

• Employee may file a grievance under applicable agency

administrative procedures or negotiated grievance

procedures if he or she believes an agency has not fully

complied with FMLA rights and requirements

Medical Certification

• For serious health condition of employee or a family member, an

agency may require medical certification from a health care

provider, to include

 Date on which the serious health condition commenced

 The probable duration of the serious health condition or that condition is

chronic or continuing and whether the patient is presently incapacitated and

the likely duration and frequency of episodes of incapacity

 The appropriate medical facts within the knowledge of the health care

provider regarding the condition

• For serious health condition of employee, a statement that the

employee is unable to perform one or more essential functions of

his or her position

Medical Certification for

Care of a Family Member

• Statement from the health care provider that the family

member

 Requires psychological comfort and/or physical care

 Needs assistance for basic medical, hygienic, nutritional, safety, or

transportation needs or in making arrangements to meet such needs

 Would benefit from the employee’s care or presence

• Statement from the employee on the care he or she will

provide and estimate of the amount of time needed

Medical Certification for

Intermittent or Reduced Schedule

Additionally, if intermittent leave or leave on a reduced

schedule is required, the certification must include

• The dates (actual or estimates) on which planned medical

treatment is expected, the duration of such treatment, and the

period of recovery

• If a chronic or continuing condition with an unknown duration,

hether the patient is presently incapacitated and the likely

duration and frequency of episodes of incapacity

Medical Certification Restrictions

• Information must relate only to the serious health condition which

qualifies for FMLA leave

• Agency may not require any additional personal or confidential

formation

• Once completed medical certification is submitted, the agency

y not request new information from the health care provider

• However, a health care provider employed by the agency or under

dministrative oversight may contact the health care provider who

completed the medical certification with the employee’s

permission for purposes of clarifying the certification

Questionable Medical Certification

• Second opinion – If agency doubts validity of original certification

(at agency’s expense)

• Third opinion – If

second opinion differs from original certification

(at agency’s expense)

• Third opinion is final and binding

• Employee must comply with second or third opinion request to

main eligible for FMLA leave

• If medical treatment must begin and employee cannot provide the

quested (original) certification, or if agency questions validity of

certification, agency must grant provisional leave pending fina

ertificatio

Recertifications

• An agency may require subsequent recertifications on a

reasonable basis, but no more than every 30 days (at

agency’s expense)

• A recertification may be requested more frequently if

 The employee requests that leave period be extended

 The circumstances described in the original medical

rtification have changed significantly

 The agency receives information which casts doubt on the

ntinuing validity of the medical certification

Medical Certification Deadlines

• An employee must provide medical certification within 15

calendar days

• If this is not possible, despite the employee’s diligent, good-

faith efforts, medical certification must be provided within a

reasonable period, but not later than 30 calendar days after

the date the agency requests such medical certification

• This requirement is consistent with the policy for providing

administratively acceptable evidence for granting of sick

leave

Leave Sharing Programs

Voluntary Leave Transfer Program (VLTP)

Voluntary Leave Bank Program (VLBP)

• The Federal VLTP and VLBP allow employees to assist other

employees—

 who have a personal or family medical emergency; and

 who have exhausted their own “available paid leave”

• Agencies are required to administer a VLTP for their

loyees

• Agencies may also establish a VLBP, but are not required t

• Employees may be leave recipients in either program, or in

bot

h programs

VLTP/VLBP Definitions

• “A medical emergency is a medical condition of either the

employee or the employee's family member that is likely

to require the employee to be absent from duty for a

prolonged period and to result in a substantial loss of

income because of the employee's lack of available paid

leave”

• The threshold for “a substantial loss of income” is absence

(

or expected absence) from duty without available paid

leave for at least 24 work hours for a full-time employee

• Same definition of family member as for sick leave

pur

poses

Leave Sharing Definitions (cont.)

• “Available paid leave” includes accrued, accumulated, recredited, and

restored annual or sick leave

• “Available paid leave” does not include

 advanced annual or sick leave

 any annual or sick leave in an employee's set aside leave accounts which

s not yet been transferred to the employee's regular annual or sick

leave account; or

 other forms of paid time off (i.e., credit hours under flexible work

chedules, compensatory time off, or religious compensatory time off)

Use of Donated Annual Leave

• Donated annual leave may be used only for the medical

emergency for which the leave recipient was approved

• Except for leave in set-

aside accounts, a leave recipient must use

any accrued annual or sick leave before using transferred annual

leave

Note: It is possible for leave to accrue into an employee’s regular

leave accounts even when the employee is in the program. Leave

will accrue into an employee’s regular leave accounts any time the

employee is in pay status, e.g., for holidays, or for hours worked if

the employee has returned to work part-time. The leave that

accrues in the employee’s regular leave accounts in such cases

must always be used before transferred annual leave may be used

Termination of the Medical Emergency

• The agency must monitor the status of the medical emergency to

ensure that it continues to affect the leave recipient

• When the medical emergency terminates

 The agency may not grant further requests for transfer of annual leave to the

recipient

 Any unused donated annual leave must be returned to leave donors/the

leave bank

Termination of the

Medical Emergency (cont.)

• VLTP is not an entitlement and should not be used

as a long-term solution to retain on the agency’s

rolls an employee who will not be able to return to

work

• In such cases, other options would be more

propriate, including

 FML

 d

isability retirement



removal for medical inability to perform the

uties of the employee’s position

Interaction of Annual Leave

with FMLA Leave

• The scheduling of annual leave is generally at the discretion

of the supervisor, based on office work needs

• If an employee requests annual leave (including donated

annual leave under VLTP/VLBP) for a personal or family

member’s serious health condition, the agency may deny the

use of annual leave

• If the employee invokes his or her FMLA entitlement,

however, the employee is entitled to substitute annual leave

for unpaid FMLA leave

Interaction of Sick Leave

with FMLA Leave

• Sick leave and FMLA leave are distinct and separate

entitlements

• For conditions that meet both sick leave and FMLA

requirements, employee may

 Invoke FMLA entitlement (12 weeks)

 Take unpaid FMLA leave

 Substitute annual leave for unpaid leave

 Substitute sick leave for unpaid leave

 Invoke sick leave and FMLA leave separately, (12 sick + 12

FMLA = 24 total; greater benefit)

Sick Leave, VLTP/VLBP vs. FMLA Leave

For whom can it be used?

Sick Leave, VLTP/VLBP FMLA

Spouses and their parents

Spouse (partner in any legally recognized marriage,

regardless of employee’s state of residency;

includes common-law marriage in states where

recognized)

Sons and daughters and their spouses or domestic

partners

Son or daughter (under the age of 18 or incapable

of self-care because of a mental or physical

disability)

Brothers and sisters and their spouses or domestic

partners

Parents (not parents-in-law)

Grandparents and grandchildren, and their

spouses or domestic partners

Domestic partners (same and opposite sex) and

their parents

Any individual related by blood or affinity whose

close association with the employee is the

equivalent of a family relationship

Parents, and their spouses or domestic

partners

Sick Leave, VLTP/VLBP vs. FMLA Leave

Two Separate but Similar Entitlements

Sick Leave, VLTP/VLBP FMLA

12 weeks per leave year to care for a family

member (as defined in 5 CFR 630.201) with a

serious health condition

12 weeks for serious health condition of

oneself; spouse; son or daughter (under age

of 18 or incapable of self-care); or parent

within any 12 month-period

Paid leave entitlement LWOP – may substitute annual or sick leave

(consistent with current laws and

regulations)

Same definition as used in FMLA regulations

(5 CFR 630.201)

Serious health condition defined in 5 CFR

630.1202

Agency may require medical certification Agency may require medical certification

Documentation must be provided within 15

days, no later than 30 days

Documentation must be provided within 15

days, no later than 30 days

5 CFR part 630, subparts B and D 5 CFR part 630, subpart L

Leave Without Pay

• Leave Without Pay (LWOP) is an authorized temporary

absence from duty without pay

• In most cases, granting LWOP is a matter of supervisory

discretion and may be limited by agency internal policy

• A supervisor cannot put an employee on LWOP. An employee

must request LWOP

Leave Without Pay

Employees are entitled to LWOP under certain circumstances—

• When an employee invokes his or her entitlement to FMLA

• Period of service in the uniformed service (under Uniform

rvices Employment and Reemployment Rights Act)

• When used by disabled veterans for necessary medical

eatment of service-connected disability (under Executive

Order 5396)

• When receiving worker’s compensation payments from the

epartment of Labor

CORRECTIVE ACTION AND DISCPLINE

RELATED TO LEAVE – RELATED

MISCONDUCT

Module Objectives

• Overview of methods by which to establish

xpectations regarding leave

• Highlight methods by which to identify leave-

elated misconduct.

• Identify and explain tools with which to

orrect leave-related misconduct

General Guidance to Supervisors

• Make expectations clear to employees

• Be c

onsistent in application of rules

• Document

• Identify Potential Concerns Promptly

• Take Corrective Action Promptly

Establishing Expectations (Giving Notice)

• Post and/or Announce Regulations, Rules

and Procedures

 Collective Bargaining Agreement

 Website

 Staff Meetings

 Staff Newsletters or Emails

 Specific Email to individual Employee

Consistent Application of Rules

• Follow your own policies procedures

 If you have a rule, refer to, and follow that rule

• Consistent does not mean identical

 Be mindful of reasonable accommodation

responsibilities

 Be mindful of individual circumstances that may

dicate need for flexibility

Documentation

• Keep Accurate Records

 Leave requests—approvals and denials

 If exceptions are made, document reasons for

xceptions.

 If disputes arise, document resolution

 If corrections are required, document nature of

rror and correction.

Identifying Potential Leave Concerns

• Review agency/office leave policy/procedure and any

applicable Collective Bargaining Agreement

• Prepare leave audit

 Indicate all absences: late arrivals, early

departures, etc.

 Indicate whether scheduled or not

 Indicate whether leave procedures were followed.

• Chart information on a calendar or other graph

• Stick to the facts

Addressing Leave Concerns

Step 1

Counseling -

• Share results of leave audit

• Solicit employee input – consider options to assist employee,

if appropriate

• Outline expectations – review policies and procedures

• Convey consequences if no improvement:

 Leave Restriction

 Disciplinary Action

• Follow up in writing

• Monitor and document progress

Addressing Leave Concerns

Step 2

Leave Restriction - a non-disciplinary letter to the

employee conveying

• Policy/expectations regarding leave usage

• Specific information about leave balances; dates when

employee did not follow proper procedure; demonstrated

pattern of leave abuse

• Specific leave procedures employee is required to follow

going forward

• Period of restriction

• Consequences of not following policy and procedures as

outlined in the letter

Possible Charges Based on

Leave/Attendance Issues

• Absence without leave (AWOL)

• Failure to follow leave requesting

rocedures/instructions

• Excessive Absence

• Elements

 Employee was required to be at duty station

 E

mployee was absent; and

 Ab

sence was not authorized: leave not

requested, or leave request was properly

denied

AWOL

LWOP versus AWOL

• LWOP is an absence from duty that is granted by

the agency at the employee’s request and which

may be used for a variety of purposes

• AWOL is a non-pay status and covers any absence

from duty that has not been approved

• Charging AWOL is not a disciplinary action, however

to take disciplinary action based on AWOL,

employee absence must have been recorded as

AWOL

Failure to Follow Leave Requesting

Procedures

• Agency has procedure requesting leave

• Employee knew procedures

• Employee failed to follow them

• Can also be used to address violation of rules in

ave restriction letter

Agency may remove employee for failure to follow leave

requesting procedures even if it subsequently approves leave in

question. Wilkinson v. Air Force, 68 MSPR 4 (1995)

EXCESSIVE ABSENCE

• Absent for compelling reasons beyond his or her

control so that approval or disapproval was

immaterial because the employee could not be on

the job

• The absence(s) continued beyond a reasonable time

and the employee was warned that adverse action

might be initiated unless the employee became

available for duty on a regular, full-time or part-time

basis; and

• The position needed to be filled by an employee

available for duty on a regular, full-time or part-time

basis

Cook v. Army, 18 MSPR 610 (1984)

Addressing Leave Concerns

Step 3

Disciplinary Actions

• Letter of Reprimand

 Temporary (stays in OPF 1-3

years)

 Grievable; not appealable to MSPB (unless through Individual Right

f Appeal procedures); can be raised with EEOC

• Suspension fr

om 1-14 days

 Permanent (SF-50

remains in OPF)

 Grievable; unless through Individual Right of Appeal procedures);

an be raised with EEOC

• Suspensions g

reater than 14 days

 Permanent and appealable to M

SPB; can be raised with EEOC

• Removals



Permanent and appealable to MSPB; can be raised with EEOC

Employee Assistance Program (EAP)

• Refer employees to EAP when there are signs of

leave misuse or other attendance problems

 Generally in writing

 Do not speculate about possible personal

roblems

• EAP can also be helpful to supervisors

 By providing tips on dealing with difficult

ituations

 By providing another useful perspective on the

atter

Pay and Leave Resources on Web

• Information on Pay and Leave

http://www.opm.gov/policy-data-oversight/pay-leave/

• Leave Administration Page http://www.opm.gov/policy-data-

oversight/pay-leave/leave-administration/

• Fact Sheets on Leave Programs http://www.opm.gov/policy-

data-oversight/pay-leave/leave-administration/#url=Fact-

Sheets

Recent Updates on Leave &

Workplace Flexibilities

• Handbook on Leave and Workplace Flexibilities for Childbirth,

Adoption, and Foster Care - https://www.opm.gov/policy-data-

oversight/pay-leave/leave-administration/fact-sheets/

handbook-on-leave-and-workplace-flexibilities-for-childbirth-

adoption-and-foster-care.pdf

• Handbook on Workplace Flexibilities and Work-Life Programs for

Elder Care - https://www.opm.gov/policy-data-oversight/pay-

leave/leave-administration/fact-sheets/handbook-on-

workplace-flexibilities-and-work-life-programs-for-elder-care.pdf

• Introduction to Leave, Work-Life, and Workplace Flexibilities -

https://www.opm.gov/policy-data-oversight/training-and-

development/reference-materials/online-courses/introduction-

to-leave-work-life-and-workplace-flexibilities/index.htm

Thank you for attending!