Ask The Lawyer

By Debra Roth

How to fight sick leave abuse

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Federal managers: Who makes the decision about when to use sick leave? Is it always the employee? Do you ever suspect that the employee may be abusing sick leave, but you lack proof? Do managers have any control over this most basic employee entitlement?

The answer is in the “leave restriction letter,” or as it’s called in some agencies, a “letter of requirements” or a “leave status letter.”
By custom, employees may self-certify the first three days of any sick leave absence. After three days, an agency may require medical evidence to support the absence.
When an employee is out on unscheduled absences claiming an entitlement to sick leave because of incapacitation, the manager must usually grant the sick leave if the employee self-certifies for an absence of three days or less. But if the unscheduled absences become a pattern, and particularly if the employee is needed at work, the manager may resort to a leave restriction letter. This is a written notice that the employee may no longer self-certify unscheduled sick leave absences.

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Q&A Session

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

 Q:        If the government compensates an employee, who earns Law Enforcement Availability Pay (L.E.A.P.), overtime wages which the government now claims the employee is not entitled to, may the government recoup the unauthorized payments by withholding funds form a federal employee’s paycheck?

A:        Any federal law enforcement officer who receives availability pay (L.E.A.P.), generally may not receive any additional payment for unscheduled duty hours, or overtime.  As such, any payment received for the unscheduled duty hours, or overtime, worked is unauthorized.  Because that payment was improperly made, an employee is not entitled to the money, and has no property interest in money that he/she is not entitled to.   Conversely, the government has the authority to recoup that overpayment, and is not prevented from doing so by clerical mistakes that caused the improper payment.  Furthermore, the government may recoup the money in intervals by deductions from the employee’s paycheck.  However, the amount deducted may not exceed 15% of his/her disposable pay without the employee’s written consent. 

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