Ask The Lawyer

By Debra Roth

Sick leave requests deserve careful review of all factors

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Federal workplaces are inconsistent on how and when they grant or deny sick leave. Some agencies grant any sick leave request, and some might deny or challenge a request when the employee has a clear right to it.

Paid time off is authorized:

• For medical incapacitation of the employee or a family member.

• To arrange or to attend a funeral of a family member.

• For the adoption of a child.

• For medical appointments for the employee or a family member.

• To care for a family member with a serious health condition.

• Because someone has a contagious illness.

Most questions about sick leave approval occur when the employee claims incapacitation as the basis for sick leave. It is often impractical for an employee to request sick leave in advance if he is incapacitated.

Most agencies allow an employee to self-certify the first three days of a sick leave absence because of a medical incapacitation. Self-certification is a serious matter, and if the employee is lying to justify sick leave, the employee can be prosecuted. The practical problem is proving the employee is lying.

Because managers sometimes doubt an employee is really sick, Office of Personnel Management regulations allow an agency to request medical evidence of an incapacitation for any unscheduled absence.

To implement this authority, the agency should issue a leave restriction letter telling the employee that the usual practice of self-certification for the first three days of absence no longer applies to that employee, and for a specified period any request for sick leave will be disapproved unless it is accompanied by medical evidence.

OPM regulations allow an employee 15 days to provide requested evidence. In the meantime, the sick leave should be disapproved and the employee placed in an absence without leave status (AWOL). If acceptable medical evidence is produced, the AWOL must be changed and sick leave approved.

Sometimes, an employee who is on leave restriction or who is out with an illness for more than three days produces vague and general doctor’s notes. The manager has a right to reject medical evidence that does not show that the employee was incapacitated. In such a case, the manager should advise the employee of why the note is insufficient and provide time for a more detailed explanation from the doctor or other health professional.

The employee may balk at providing private, sensitive information to the supervisor. While the supervisor has a right to information that establishes incapacitation, the better practice is to allow the employee to confidentially submit detailed documentation to a trusted neutral source such as a public health service doctor or employee relations official.

The manager could then accept the neutral source’s judgment about incapacitation without needing details of the employee’s private medical condition.

Another issue is timing on sick leave requests. A sick leave request for a medical appointment is required in advance. An employee who calls at 9 a.m. and says he has a dental appointment without having requested it in advance can hear a “sick leave denied” answer unless the appointment was for an emergency.

OPM regulations also require, to the extent possible, advance requests for sick leave to arrange or attend a family funeral, to adopt a child or to care for a sick family member.

When an employee requests sick leave to care for a family member with a serious health condition, a manager may require additional medical information concerning the family member’s need for psychological or physical care. That information is required to certify that the family member would benefit from the employee’s care or presence for a specified time.

Most often, an employee will easily be able to obtain sick leave by showing the request fits one of the categories for which sick leave may be taken. When a question arises, it is often because of a pattern of unscheduled absences. A leave restriction letter may remedy this and help a doubting supervisor.

The bottom line: If an employee requests sick leave in advance, if possible, and produces administratively acceptable evidence to show the request fits an authorized sick leave category, the sick leave must be granted.

Comments

  1. Robert Says:
    November 14th, 2011 at 10:40 am

    This is a clear process with checks and balances.

    Unfortunately it is being used also has a tool to retaliate.

    As there are two different standards on how Federal Employees are treated by their supervisors and held accountable on their Time and Attendance and Leave both annual and sick being approved or disapproved.

    The problem is when it gets corrupted by the supervisor having a close relationship with other worker and subordinate that does not have to fill in an OPM 71 or that calls in I am sick but the next day is very noticeable that she went over to the hair salon. And other times sends an email that I will not be in today because I am sick and upon return to the agency fails to fill the form OPM71 and the supervisor due to their close relationship does not require for the subordinate friend to fill one and at the end of the pay period she gets credit as being for duty when the subordinate was not.

    The problem is that others are held to a different standard and that is not fair. The rules apply across the board!!!

    This program is designed to be applied across the board and applicable to all Federal Employees performing duty at the agency. In addition time card abuse will continue to exist as long as no one is willing to implement the rules that apply to all.

    When this is not apply at the end of the leave calendar year this individuals then claim endless hours of use of loose all because they were never charged for their absence and because they were never required to be in compliance with the OPM Rules.

    In addition when time card abuse is reported to DoD IG or their Superiors under the No Fear Act then supervisors use their position to conduct reprisal and revenge and they retaliate by denying sick leave to the subordinate that reported them.

    The denial is on Paid time off that s authorized:

    • For medical incapacitation of the employee or a family member.

    • For medical appointments for the employee or a family member.

    • To care for a family member with a serious health condition.

    It is a shameful behavior of this supervisors to retaliate against the employee and their family members openly as no one will step and look upon the issue that is the supervisor poor behavior that should be in question especially when they conduct preferential treatment to their subordinate friends and they use their position to give them a free day off from work.

    Not a perfect world but we do have a system in place to be applied across the board to all Federal Employees to include Supervisors who think that the rules do not apply to them…

    Robert

  2. EJ Says:
    December 15th, 2011 at 10:05 am

    You need to address the financial burden on the employee required to provide medical evidence. My FEHB plan requires a $20 copay for a scheduled primary care visit. It is frequently difficult to get an appointment though. An unscheduled visit with my doctor costs me $60.

    A Walgreens walk in clinic visit costs me $25 but when I went last time I waited over 2 hours with all the other sick people in the waiting area! This horrible old coot next to me was sneezing and coughing without covering his mouth! Eek!

    My supervisor is trying to be consistent in requiring all employees to provide medical evidence. In the past some of the staff have abused the sick leave policy and my supervisor, who was accused of discriminatory practice in the past, is trying to prevent the appearance of discrimination. I haven’t abused leave, but am still subjected to this burden.

    I don’t think I should have to go to the doctor if I have the flu. The doctor offered antibiotics to prevent a secondary infection but I didnt’ think I needed it. Turned out the flu passed after a week without antibiotics. But I had to pay for the doctor visit and might have been subjected to unneeded treatment! Gads – I just thought of this: could my superviisor say I wouldn’t need so much time off if I’d taken the antibiotics!?

    The requirement for medical documentation is a burden.