| June 2004 |
| Leave Issues: AWOL, Sick Leave Restrictions, LWOP, and Standards for Acceptable Medical Documentation |
| Ron James, Regional Director, DC Field Office |
| AWOL | Sick Leave Restrictions | LWOP | Standards for Acceptable Medical Documentation | Notes |
| Among the most common employee complaints that stewards handle are issues involving absence without official leave (AWOL), sick leave restrictions, leave without pay (LWOP), and standards for acceptable medical documentation. This issue of the Steward Update will include a review of the law and provide some guidance on handling these matters. Requests for sick leave, LWOP, and medical documentation standards under the Family and Medical Leave Act (FMLA) are somewhat different from those that occur in the general employment setting and will not be covered in this issue. (For more information on FMLA see the Steward Updates of January 1999, February 1999, June 2000, and October 2003). Also, you should consult your NTEU collective bargaining agreement for other applicable requirements and rights for AWOL, sick leave restrictions, LWOP, and standards for acceptable medical documentation. |
| AWOL |
| An absence from duty that is not authorized by the agency-or for which a request for leave has been properly denied-may be recorded as AWOL. It is well established that in the absence of a valid excuse, it is the employee's responsibility to report to work when expected.1 However, employees and their managers often disagree over whether an employee's excuse is indeed “valid.” The determination of whether an employee's excuse is valid must be made on a case-by-case basis evaluating all the pertinent facts, e.g., the reason the employee was absent, documentation of the reason for the absence, how other similarly situated employees have been treated, etc. Although AWOL might serve as a valid basis for discipline, under most circumstances, AWOL is not itself considered discipline. The placement of an employee on AWOL instead of on approved leave is not a constructive suspension or enforced leave unless the agency prevents the employee from returning to work.2 Generally, AWOL charges that have not otherwise resulted in an adverse action can be appealed only through grievances under collective bargaining agreements. But, if an AWOL charge is alleged to be an unfair labor practice or a prohibited personnel practice, it may instead be appealed to the Federal Labor Relations Authority or the Office of Special Counsel respectively. In all instances, the employee must show that the absence from duty was legitimate.3 However, in order to prevail on an AWOL charge after the employee has established the legitimacy of the absence, the agency must show both that the employee was absent and that either the absence was not authorized or that a request for leave was properly denied.4 Thus, in order for the agency to properly charge an employee with AWOL, it is not enough to show that an employee was absent from work without approval; the agency must also show that its denial of the leave was proper. |
| Employees are sometimes charged with AWOL because they failed to follow the procedures for requesting leave. However, agencies must grant leave requests when employees provide proper evidence of incapacitation due to illness or injury and may not properly charge AWOL for such periods, regardless of whether employees complied with leave procedures.5 The same is true for absences without advance approval due to documented family emergencies.6 Further, an agency may not charge an employee AWOL for dates on which he/she receives or is entitled to receive benefits from the Office of Workers' Compensation Programs.7 |
| If an agency does discipline an employee for failure to follow leave request procedures, the agency (in order to prevail) must also identify the adverse impact(s) caused by the employee's absence.8 |
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| Sick Leave Restrictions |
| Generally, under OPM's government-wide regulation, 5 CFR 630.401, agencies must grant sick leave to an employee when the employee: |
- receives medical, dental, or optical examination or treatment;
- is incapacitated for the performance of duties by physical or mental illness, injury, pregnancy, or childbirth;
- provides care for a family member who is incapacitated by a medical or mental condition or to attend to a family member receiving medical, dental, or optical examination or treatment;
- provides care for a family member with a serious health condition;
- makes arrangements necessitated by the death of a family member or attends the funeral;
- would, as determined by a health care provider, jeopardize the health of others by his/her presence on the job because of exposure to a communicable disease; or
- must be absent for purposes relating to the adoption of a child.
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| Normally, medical documentation for purposes relating to the use of sick leave is not required unless the absence is more than three (3) consecutive days. However, sick leave restrictions usually requires an employee to justify each period of sick leave absence and/or to abide by special reporting requirements for such absences. Sick leave restrictions can institute these requirements even in the case of absences of less than three (3) consecutive days. The basis for such restrictions is usually for so-called “leave abuse.” Because there is no standard definition of leave abuse, it is especially important that sick leave restriction letters be carefully reviewed and the events that resulted in them thoroughly investigated on a case-by-case basis. Sick leave restrictions that are not justified by the circumstances or were issued in violation of the requirements of applicable rules and/or collective bargaining agreements should be challenged with timely grievances if informal efforts fail. Waiting until discipline has resulted under the restriction letter might present timeliness issues that prevent a successful challenge to either the appropriateness of the employee having been placed on restriction or any deficiencies in the leave restriction letter. |
| Unless there is some contract language or agency policy to the contrary, a sick leave restriction letter can be extended for an additional period, if justified by the employee's record during the initial restriction period.9 If, at the end of the initial term, a good case can be made for the discontinuance of the leave restriction because of the employee's good attendance and observance of reporting requirements, the steward should advocate for the discontinuance. If the agency disagrees and extends the restrictions, a grievance should be filed challenging the extension. If the leave restriction is for a set duration and it expires without any notice to the employee that it will be extended, it is no longer in effect. |
| It is important to note that just because an employee uses sick leave regularly or usually has a zero leave balance, these circumstances are not necessarily proper grounds for the imposition of sick leave restrictions. |
| If an employee or qualifying family member has a documented covered condition that necessitates the employee's absence, sick leave can properly be used in such situations. This is its intended usage. Therefore, such leave usage is not by definition abusive and should not be used to justify sick leave restrictions. |
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| LWOP |
| LWOP allows an employee to be absent from work without charge to leave and without pay. Normally, LWOP is requested because an employee lacks sufficient leave to cover an absence. The granting of LWOP is a matter of agency discretion; however, the agency may not unreasonably deny a request for LWOP in situations involving illness or injury.10 |
| Factors for an agency to consider in deciding on a request for LWOP include whether the employee's services can be spared and the legitimacy of the reasons for the employee's request.11 If an employee has exhausted his/her leave, an agency may deny a request for LWOP or discontinue approved LWOP and place the employee on AWOL if: 1) there is no foreseeable end to the absence; and 2) the employee's absence would place a burden on the agency.12 The agency is generally relieved of these requirements if the LWOP request is to cover an extended absence because of an employee's incarceration. In such situations, the agency may deny LWOP and charge the employee AWOL.13 However, all LWOP denials might be challenged on the basis of disparate treatment if LWOP has been granted to other similarly situated employees. To determine if the denial of LWOP can be challenged because of disparate treatment, an information request should be made to discover how LWOP requests of other similarly situated employees have been treated. Any denial of a LWOP request may also be challenged if the denial was based on illegal discrimination or if it constituted a prohibited personnel practice. (For a more detailed discussion on discrimination and prohibited personnel practices, see Steward Update January 1989, April 1992, June 1992, July 1992, January 1995). |
| In the case of an employee who is a disabled veteran under 5 USC 2108, an agency must grant a request for sick leave or LWOP so that the employee may seek treatment for the service-related disability pursuant to Executive Order 5396. So long as the disabled veteran, in requesting the leave, gives the agency prior notice of the dates and times of his absence, Executive Order 5396 requires the agency to approve the request.14 |
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| Standards for Acceptable Medical Documentation |
| Under OPM's government-wide regulation, 5 CFR 630.403(a), an agency may grant sick leave when the request is supported by administratively acceptable evidence. Regardless of the duration of the absence, the agency may, at its discretion, accept the employee's self-certification as administratively acceptable evidence. However, for both sick leave absences in excess of three (3) workdays and for lesser durations if the employee has been properly placed on notice through, for instance, a sick leave restriction letter, the agency may require medical documentation. Normally, a summary conclusion will satisfy the request. However, the agency is entitled to a detailed medical certificate to support an employee's absence due to incapacitation when: 1) an employee is expected to be or has been absent from work for an extended period or when the employee has been properly and appropriately place on sick leave restriction; and 2) the employee has been instructed to provide a detailed certification to support the absence.15 The agency is also entitled to a detailed certification in connection with a request for advance sick leave. 5 CFR 339.104 permits an agency to request documentation of medical conditions that include the following or parts of the following information which are relevant and necessary to understand the employee's condition: |
- history of the condition;
- clinical findings from the most recent medical evaluation;
- diagnosis;
- prognosis;
- explanation of the impact of the medical condition on the employee's overall health;
- explanation of the medical basis for any conclusion that indicates whether or not any of the employee's job duties would cause incapacitation either with or without accommodation; and
- explanation of the medical basis for any conclusion that the medical condition has or has not become static or well stabilized and the likelihood that the employee may experience incapacitation as a result of the medical condition.
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| Although the agency might ask for any or all of the above information, remember, the agency is only entitled to that information which is relevant and necessary to understand the employee's condition. Further, NTEU has negotiated limits on agencies' rights to request medical documentation in some of our labor agreements. Therefore, be sure to consult your collective bargaining agreement for other specific limitations that might apply. |
| In situations where the agency makes a proper request for medical documentation for an employee's absence due to incapacitation, the agency is entitled to an explanation from an appropriate practitioner as to why the employee was or will be incapacitated for work. If not prohibited by the collective bargaining agreement, the agency may also request that the certificate state that the employee cannot perform his/her duties.16 However, a medical certificate should not be rejected for a technical deficiency if the agency failed to notify the employee in advance of such technical requirement. For example, the agency cannot reject a certificate because the doctor's signature was stamped rather than signed if the employee had not been told previously that stamped signatures were unacceptable.17 If the agency's own doctor certifies to an employee's incapacitation, such certification is administratively acceptable evidence of the incapacitation.18 |
| There is no government-wide regulation that requires that medical certifications can only be provided by physicians.19 Certification might, for example, come from a chiropractor or psychologist. If the employee's absence is caused by a mental illness or an illness that otherwise adversely affects the employee's ability to comply with the certification requirements, the employee's failure to comply might be excusable.20 |
| 5 CFR 339.104 requires that determination of any detailed medical information required by an agency and submitted by an employee to enable the agency to make an employment decision (such as a request for leave) be made by or in coordination with a physician or, if appropriate, a practitioner of the same discipline as the one who issued the statement for the employee. This provision prevents any supervisor or manager who is not a qualified physician from drawing conclusions about an employee's medical condition from any detailed medical documentation independent from that of a qualified physician. If managers or supervisors are not qualified physicians, they must consult with one if they are going to base any personnel decision (such as leave approval, reasonable accommodation, etc.) on detailed medical documentation. |
| Employee medical records are to be kept confidential under the Privacy Act and the Rehabilitation Act unless the employee voluntarily discloses the information. |
| (For a detailed discussion of the application of the Privacy Act and medical information, see Steward Update January 2004). |
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| Notes: |
- Giesler v. Department of Transportation, 3 MSPB 367 (1980).
- Bucci v. Department of Education, 36 MSPR 489 (1988).
- Social Security Administration v. Wittlesey, 59 MSPR 684 (1993), aff'd, 39 F.3d 1197 (Fed. Cir. 1994) (Table), cert. denied, 115 S. Ct. 1690 (1995).
- Staten v. USPS, 26 MSPR 206 (1985).
- See Young v. USPS, 79 MSPR 25 (1998).
- Hockman v. American Battle Monuments Commission, 11 MSPB 246 (1982).
- Atchley v. Department of the Army, 46 MSPR 297 (1990).
- Douglas v. Department of Veterans Affairs, 5 MSPR 280 (1981).
- See Pope v. Department of the Navy, 44 MSPR 289 (1990).
- Foster v. Department of Health and Human Services, 18 MSPR 339 (1983).
- Webb v. U.S. Postal Service, 10 MSPR 536 (1982).
- Kamer v. Department of the Navy, 67 MSPB 163 (1981).
- Wright v. Department of the Navy, 16 MSPR 408 (1983).
- Miller v. USPS, 9 MSPR 59 (1981).
- Robinson v. Veteran's Administration. 29 MSPR 594 (1986).
- Bergstein v. USPS, 30 MSPR 232 (1986).
- Morton v. Department of the Navy, 32 MSPR 104 (1987).
- Atchley v. Department of the Army, 46 MSPR 297 (1990).
- See Kelmon v. Department of Justice, 27 MSPR 581 (1985).
- See Villanueva v. USPS, 26 MSPR 534 (1985).
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