Ask The Lawyer

By Debra Roth

Supervisors call shots on leave use

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Leave management is a constant challenge for most front-line supervisors. As leave use increases during flu season and year-end vacations, supervisors should understand a few basic rules about the different types of leave and the extent and limits of their authority in leave management. In making leave determinations, it is generally the supervisor, not the employee, who calls the shots. The first principle is that being absent from work without leave or authority is a serious matter. It is the supervisor’s discretion whether to approve leave for an unauthorized absence. An employee who just does not show up is absent without leave (AWOL) and can be disciplined. The supervisor must carry the employee in an AWOL status and avoid the temptation to approve leave without pay (LWOP), which is considered approved leave. Repeated or lengthy AWOL of more than a few days can support a severe adverse action, including removal. If the unauthorized absence is converted to LWOP, the ability to discipline is curtailed.

Sometimes an employee might call in sick and ask the supervisor to credit the absence to annual leave. The supervisor can say no and require the employee to take sick leave. If the employee has no sick leave, the manager could approve leave without pay or the employee could be advanced sick leave. As a general rule, an agency will have a practice about LWOP approval for medical reasons or for advancing sick leave. To the extent an employee’s request for LWOP or advanced sick leave is consistent with past practice and is supported by medical evidence, the request should be granted. LWOP of up to 12 workweeks a year is available under the Family and Medical Leave Act (FMLA) to an employee with a serious health condition, but again, medical evidence is required. When the sick employee uses up FMLA leave and the agency has exceeded the LWOP it usually grants an employee with a health condition, the agency may declare the employee AWOL.

Agencies have the discretion to advance sick leave during a leave year, but that authority is limited to 30 days, or 240 hours during the leave year, for full-time employees. An agency need not approve a request for advanced sick leave and may require medical evidence in deciding to exercise its discretion to grant the leave. A word of caution: If an agency has a policy to advance sick leave up to the allowable amount upon proof of a legitimate medical need, the refusal to do so may be viewed as evidence of discrimination. Care should be taken to advance sick leave fairly and consistently among the workforce.

Voluntary leave banks — or borrowed leave — are valuable resources for employees in agencies that have them. The banks are only for annual leave and they apply only to medical emergencies. To use a leave bank, a leave recipient must also be a leave donor. The minimum annual leave donation for a leave donor is the amount of annual leave earned in a pay period. The maximum annual donation is 50 percent of the leave earned. A donor may designate a particular recipient as the person to receive his leave. Leave banks are established by a specific and written agency policy, which includes the composition of a leave bank board and an enrollment period.

Voluntary leave bank boards, which must include labor representation, review applications for annual leave to assure that the leave is for a medical emergency that is supported by medical evidence. The leave donor then becomes a leave recipient and can use annual leave to cover a medical emergency when the employee is out of sick leave.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

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Comments

  1. J.Crockett Says:
    December 5th, 2011 at 5:00 pm

    Part of your article is wrong, see below.

    Under Executive Order 5396, July 17, 1930, a disabled veteran is entitled to use sick leave (or annual leave or leave without pay) for necessary medical treatment associated with the service-connected disability. The veteran must give prior notice of the date(s) he or she is requesting leave for medical treatment.

  2. Robert Says:
    December 8th, 2011 at 7:45 am

    The above is the way the leave program should work.

    But to the contrary belief this is a very corrupt system especially when the supervisor desires to establish an approval program based on seniority..And their relationship with their subordinates.

    Case in point the supervisor gives priority approval for the subordinate and in Meany instances the subordinate friend does not get charged with leave for the absence.

    I have seen a subordinate take three weeks of leave and only get charged for two… This is Larceny of Government resources using the time and attendance system.

    I have seen the subordinate friend call in sick and never fill in an OPM 71 and the supervisor giver the subordinate a day off by certifying the time card like the individual was there for duty.

    Unfortunately if you report the larceny of government resources no one does anything because of their lack of courage.. Reported it several times and no action taken.

    Shameful behavior of this Federal Employees and shameful behavior of the leadership for their lack of courage to investigate and hold them accountable..

    Robert

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