In Part One, we talked about the actions leading up to a leave restriction memo or letter. In this part, we’ll look at the key elements and options for leave restriction.
Restricting Annual Leave
These articles primarily focus on sick leave problems but annual leave may be restricted as well. Employees who consistently have very low balances for no good reason, who have a habit of last minute requests, who are regularly tardy with ambiguous excuses or other appropriate reason may be required to follow a stricter set of rules.
In restricting annual leave, supervisors may require a specific advanced notice or proof of the situation that prompted a last minute request or caused the tardiness. Many will not like this statement but while earning annual leave is a matter of law, using it is a matter of Agency discretion based on considerations such as coverage, mission requirements, scheduling, or other legitimate reason. Even the Federal Labor Relations Authority recognizes that union proposals that require a grant of annual leave under almost any circumstances violates management’s right to assign work and are not subject to bargaining.
Sick Leave Basics
Quoting from OPM’s website:
“An employee may use sick leave when he or she:
- is incapacitated for the performance of duties by physical or mental illness, injury, pregnancy, or childbirth;
- receives medical, dental, or optical examination or treatment; or
- would, as determined by the health authorities having jurisdiction or by a health care provider, jeopardize the health of others by his or her presence on the job because of exposure to a communicable disease.
Requesting Sick Leave
An employee must request sick leave within such time limits as the agency may require. An agency may require employees to request advance approval for sick leave for their own or a family member’s medical, dental, or optical examination or treatment.
Granting Sick Leave
An agency may grant sick leave only when supported by evidence administratively acceptable by the agency. For absences in excess of 3 days, or for a lesser period when determined necessary by the agency, an agency may require a medical certificate or other administratively acceptable evidence.”
The above forms the basic framework for the use of sick leave. Additionally, the Federal Medical and Leave Act (FMLA) provides for 12 weeks (60 days) per year of leave without pay (LWOP) for employees and for the care of family members as defined by the law. Federal employees in most but not all cases may convert the leave without pay to sick or annual leave, to the degree they have earned such leave.
This article isn’t about FMLA but it is a consideration when restricting leave in some cases. Employees who can prove their own incapacitation or their need to care for family members have a right to use LWOP in those situations regardless of their annual or sick leave balance.
Why Restrict Leave?
Fundamentally, managers who restrict the use of leave do so to encourage employees to properly request leave, to use the leave for an appropriate reason, and to support mission effectiveness. As the Merit Systems Protection Board has held again and again, if an individual is absent without permission, that behavior is presumed to have a negative effect on the efficiency of the service.
Key Elements of a Sick Leave Restriction Letter or Memorandum
- State the purpose of the letter.
- State the reasons for issuing the letter.
- List and provide copies of what you have given the employee thus far.
- Explain, in detail, what the employee must do.
- For the medical information you are requiring, provide an enclosure the employee may give his or her physician to help them meet your needs.
- Explain any consequences of the employee’s failure to comply.
- Advise the employee of their ability to use the Agency’s Employee Assistance Program.
Attached is a sample leave restriction memorandum. I borrowed this from an online copy of an agency sample and messed with it a little. So if you’re from that agency and don’t like the liberties I took, I apologize in advance for both stealing your basic letter and doctoring it to my liking.
Helping the Doctor
Physicians worry about HIPPA, a law which we (in the government, if we’re smart) cannot run afoul of because, and keep this foremost in your thinking, we are not asking the physician for any information. We are requiring the info from the employee to, if possible, excuse otherwise actionable behavior. Since the doctor has no legal basis to withhold info from the patient, HIPPA doesn’t apply. Employees need not provide us medical information but failing to do so leaves to the agency the option of taking one or more progressive actions based on the bad behavior (No medical info = no legitimate excuse). 5 CFR 339 is short and easy reading which should be a mouse click away from any specialist working one of these cases. 339 puts the burden on the employee to either provide medical information explaining the use of leave or face the music for the deeds involved.
Also, you may want to attach a description of the physical (or mental, if appropriate) demands of the job. See a prior two part article on acceptable medical evidence and how to get it.
Will it Work?
There are lots of causes underlying the abuse of leave. Supervisors and managers often give substantial leeway before addressing the problem. It’s not for me to judge someone’s management style but my on-the-job experience is that the longer a problem is avoided, the harder it is to address. Almost all employees will meet expectations if those expectations are rational, clear and fairly enforced. As for the others, the taxpayer deserves a fair day’s work for a fair day’s pay and those unwilling or unable to do so must inevitably be dealt with.
I have been involved in Federal employee relations since 1973. My experience is that those employees who get it, however late, will go on to be productive workers. Those who don’t get it put their fate in the hands of others. This has always seemed to me a bad choice.
Some union contracts set the duration a leave restriction may stay in effect without being reissued. Otherwise, the smart move is to tell the employee it is in effect for a minimum period and may be withdrawn upon a showing of continuing acceptable behavior. You should considering reissuing the letter if circumstances warrant to make sure the information in it is fresh.
The Box and the Road
This article has addressed the “Box”. The “Box” is a delineation of acceptable behaviors along with a fair opportunity to demonstrate them. The “Road” is the persistence a supervisor or manager must have to see a solution through to its end. I believe Federal employees are adults who are responsible for their behavior. The “Box” and the “Road” should encourage mature behavior and, in its absence, fair consequences. Whenever I was asked to advise a manager dealing with employee problems, I listened carefully to their rendition of the problem and considered the existing evidence and after hearing that, had a “Box” and “Road” discussion with them. This conversation outlined likely outcomes both positive and negative and what each succeeding outcome would likely require of the manager. My advice was and is:
Do Not Build a Box or Start Down a Road Unless You are Willing to See it Through to Conclusion. To Do Less is not Fair to Yourself, the Person Involved and Coworkers Who Often Bear a Greater Share of Consequences Than the Supervisor.
Teddy Roosevelt may have said it best, “In a moment of decision, the best thing you can do is the right thing to do. The worst thing you can do is nothing.”
The opinions stated herein are mine and mine alone. Don’t forget that in matters involving attendance problems, it’s wise to get an experienced Human Resources Specialist to help you.