Ask The Lawyer

By Debra Roth

Must I grant this FMLA request?

Bookmark and Share

The Family Medical Leave Act (FMLA) is a narrow but important benefit for many workers in the U.S., including federal employees. The challenge for federal managers is to understand some of the intricacies of the law so that they know when and how to challenge a worker who may be misusing FMLA as an unjustified excuse to stay away from the job, while preserving the right to return to work at the employee’s option.

Most federal employees do not abuse FMLA. FMLA covers leave for a serious illness of the employee or the employee’s spouse, child or parent. It also covers leave for the birth or adoption of a child. It is only available to employees who have been employed for more than one year, and it permits the employee an unpaid absence for up to 12 weeks within a 12-month period. Office of Personnel Management regulations allow a federal worker to substitute paid sick or annual leave.

The two main issues that confront managers in a potential abuse situation are whether an absence is actually due to a serious health condition and the timeliness of an FMLA request. OPM regulations authorize managers to reasonably regulate and question an FMLA absence.

Unlike sick leave, in which employees self-certify the first three days of an absence, a manager may require medical evidence for any FMLA absence, regardless of length, that is based on the employee’s serious health condition. A manager may request that the documentation be detailed and that the employee explain the nature of the illness and why it prevents him from performing the essential functions of his job.

An employee who fails to provide the documentation can be denied FMLA benefits and may be carried in an absence without leave (AWOL) status unless the employee can claim some other entitlement, such as sick leave. AWOL, of course, is a basis for disciplinary action against an employee.

An employee who claims an FMLA entitlement because he is caring for a parent, child or spouse with a serious health condition may be required to provide medical documentation that shows both a serious health condition and the necessity of the employee’s presence to care for the person who is ill.

An agency may even request administratively acceptable evidence to prove that a child is being born or adopted, although in many cases such an event is obvious.

Another aspect is determining which illnesses fall into the “serious” category. A cold that can be treated with over-the-counter medications or a routine eye doctor’s appointment are not examples of serious health conditions even if the employee has a legitimate medical problem. As a general rule, OPM regulations will find a health condition to be serious if the employee is hospitalized, if there are two doctor visits for the same illness or the illness continues for three days and the doctor prescribes treatment. OPM’s regulations on this point are complex, and a manager who is thinking about denying FMLA because he thinks a doctor’s letter does not describe a serious condition should check with human resources.

Timing of a FMLA request is also important. Generally, FMLA leave should be requested in advance. Thirty days’ notice should be given when possible. The absolute end date for requesting FMLA leave is within two days of returning from the absence. This means that managers do not have to grant an FMLA request for the employee who comes up with the idea of making an FMLA request after an absence has occurred and been questioned.

The idea behind FMLA is that employees should be able to take time away from work to take care of major life events and then return to work. It is an important right, but managers have the tools to prevent abuse by those who might claim FMLA benefits without being entitled.

Handling insubordination a legal minefield for managers

Bookmark and Share

Insubordination is a serious charge, often justifying the removal of an employee. Some observers of the federal workplace might think that at least some insubordination occurs on a daily basis without much of a management response. These observers see employees who continue with impunity to fail to do what they have been instructed to do.

One difficulty for managers is the legal definition of the word “insubordination.” According to the U.S. Court of Appeals for the Federal Circuit and the Merit Systems Protection Board, insubordination is the willful refusal to follow a lawful order. The challenge usually is proving the willfulness of the employee’s failure to do what was expected.

Proving willfulness requires the manager to show that the expectation was clear and unequivocal. Sometimes, in an effort to be polite, a manager may not explicitly state that a work expectation is required, leaving the employee with the notion that the assignment is optional, or at least could be done at a later time or in a different manner. The manager who disciplines an employee for insubordination has to have evidence that is sufficiently strong to rule out the plausibility of these types of situations.

Other excuses that must be proven implausible by the manager are: I forgot; I didn’t understand; you weren’t clear; I think you should put it in writing next time; I thought you meant Joe, not me; and many more that most experienced federal managers have heard.

If a manager is unclear whether an action qualifies as insubordination or if the manager is uncertain whether the original work order was good enough, the employee’s failure to complete a work assignment is still misconduct. It may not necessarily be insubordination.

A charge of failure to complete a work assignment merely requires proof that the work assignment was given and not done. The employee’s motivation or intent is irrelevant. The supervisor’s credible testimony — hopefully backed with documentation — is sufficient to prove the charge.

The downside to using a lesser charge like “failure to complete a work assignment” is that the maximum reasonable penalty — when the employee appeals an adverse action before MSPB — is less severe than it is for insubordination. So, if a matter is really serious and the evidence is strong, the manager should charge insubordination. Otherwise, a manager should try to get the attention of an errant subordinate by making a lesser charge and taking clear action directed at notifying the employee that the non-performance is unacceptable.

Here’s an example. The Federal Circuit upheld the removal of Navy civilians who refused to be vaccinated for anthrax. The charge was insubordination, and an impartial observer would easily see that the order to be vaccinated was clear.

In another case, the Federal Circuit found no insubordination when an employee refused to pay the balance on a government travel card because her vouchers had not been fully processed. The court held that the order was not clearly communicated and the refusal was not insubordination. In that case, a lesser charge would likely have been upheld.

The final question is whether an order is lawful. The basic rule is that any order is lawful as long as the employee is not being asked to commit an illegal act or to endanger his or her life or health or the life or health of others. An employee who refuses to carry out an order because he thinks it’s unwise, as opposed to illegal, is risking an insubordination charge and possible serious adverse action.