Ask The Lawyer

By Debra Roth

Q&A Session

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Ask the Lawyer received the following paraphrased question from a reader on a legal matter that may be of interest to the entire audience.

Q: Good evening, I am an SSA employee. I have been on medical leave and exhausted all my annual leave and sick time. My manager has informed me they have no choice but to charge me absent without leave (AWOL). I will submit medical documentation to continue my leave without pay (LWOP), but my question is: Should I go to work on even without my doctors authorization?  I have a pending immediate disability retirement claim at the reconsideration level and a SSA disability claim. I filed for workers comp and my claim was denied. I was issued a reprimand due to my use of the Family and Medical Leave Act (FMLA) — they said I was rude to management, but that is not true. I need help.

A: Sick Leave Gone and Still Sick?  What’s Allowed and What’s Not.

This reader’s question is about employee rights and management obligations when sick leave has been exhausted, annual leave has been used up and the sickness and resulting need to be absent from work continues.

Some agencies will authorize leave without pay in these situations and do expect that to receive it the employee will provide medical documentation.  There are also the options of advanced sick leave, donated sick leave and sick leave banks, but these vary from agency to agency and are not absolute rights.

Essentially, when an employee runs out of sick leave the employee can be put in an AWOL status except as outlined below.  Sometimes, the employee can receive LWOP or advanced sick leave when such benefits are given to other employees in similar circumstances.  The employee may also be entitled to Family Medical Leave for LWOP absences of up to 12 weeks a year for serious illnesses.  To obtain FMLA leave the employee must submit medical documentation and, according to OPM regulations, must submit the FMLA request in advance to the extent practicable and, if not practicable, within two days after return from the absence for which the Family Medical Leave is sought.  As a matter of practice, most agencies will approve LWOP for employees who submit medical documentation supporting the need to be absent while a disability retirement application is pending.  But an agency does not have to do this and can put the employee on an AWOL status unless there is some right or expectation to authorized leave, including LWOP.

Whether an employee goes to work when still sick or disabled should be decided between the employee and the doctor, particularly when working could threaten the employee’s health or the health of others.  The remedy, as this reader points out, is disability retirement if the worker has been a federal employee for at least 18 months and has a disability likely to last at least a year.  When disability retirement is approved by OPM, an annuity payment is made back to the point that an employee went into a non pay status, whether AWOL or LWOP.

 

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