Managing Leave and Attendance Problems

Leave abuse and attendance problems can harm an organization. The author says that these problems mostly lie with management and offers some suggestions for how to deal with the problem. He also analyzes the history of some related MSPB cases for precedent on leave issues.

As a former human resources officer, an area for which my counsel was frequently sought was managing leave, and excessive leave problems.

In a September 2012 BLR leave survey of 800 organizations, 10 percent of those responding reported that leave abuse was their biggest problem. 10 percent does not sound like a lot, but to a supervisor who has little to no excess capacity in terms of time, it is a lot.

However, I have a different view of the problem.  Yes, there are those who will consistently push the edge of the envelope when it comes to adherence to the leave rules, or actually coming to work on time or when expected.  My view of the problem is management.  I hold this view because so much of the abuse is allowed to grow and become a problem by not being proactive from the very start.

I distinctly remember one senior manager who camped out in my office on numerous occasions concerning the same leave abuse issue by the same person.  Even though she had been given a roadmap several times of actions she had to take to correct the behavior, I finally had to resort to a dose of “tough love” by telling her that there was nothing more that I could do for her until she got her transmission out of neutral to address the problem.

What is an attendance problem?  It is:

  • Failure to adhere to attendance rules
  • Excessive unscheduled absences disrupting organizational efficiency and planned work
  • Failure to schedule leave in advance of time off
  • Failure to contact the supervisor in unscheduled “emergency” situations
  • Chronic tardiness or absence
  • Misrepresentation of time-sheet entries
  • Failure to furnish required medical documentation

What is a leave abuse problem?  It is:

  • Using leave in situation that do not qualify for such use
  • Suspicious employee attendance pattern.

Examples are:

  • An employee may use up SL as soon as it is earned by frequently taking time off for an undocumented issue
  • Frequently uses SL on the same weekday or connected to weekends or holidays, or after a long lunch
  • Demonstrated pattern of taking SL after receiving an undesirable work assignment
  • An accountant taking a lot of unplanned time off between January and April 15
  • A person taking a lot of unplanned time off because it is hunting season etc.

This list can go on for many other reasons, but you catch the drift. There is an important lesson that all supervisors and managers must learn when confronted with a leave abuse issue: you are not acting, you are only reacting to a workplace issue that the employee is creating.

We seem to forget often that there is a very fundamental employer/employee equation, a person shows up for work, applies their knowledge and skills to the fullest of their ability, and in exchange, the employer pays them.  It is when this equation is no longer in equilibrium that the problem occurs, and when constructive advice and counseling does not bring about the desired results, then discipline may have to occur.

Managers must recognize and separate themselves from the notion that they are “doing” something to the employee.  Moreover, managers must divorce themselves from the notion that holding people accountable for their own misbehavior and misconduct that they will lose the employee’s respect and/or friendship.  Supervisors who ignore and fail to address workplace issues:

  1. Enable bad behavior and invite the problem to grow larger.
  2. Create an environment where morale of other good employees will deteriorate.
  3. And lastly, lose control and respect of their direct reports and colleagues because of their ineffectiveness.

The preponderance of case law on this subject is in favor of the managers.  The MSPB and arbitrators are not inclined to support an employee on an appeal when the employee has ignored the organization’s leave rules and procedures, and constructive efforts to bring the problem to the employee’s attention and the steps they need to take go unheeded.

An essential element is that the employee is expected to be there when scheduled to work. (Davis vs. VA, 1986).  It is a well established principle that prolonged absences with no foreseeable end is just cause for removal. (Bucci vs. Dept. of Ed, 1990).  An agency is entitled to require an employee to come to work during scheduled work hours, and the employee’s “unauthorized” absence is contrary to the efficiency of the service. (Haine vs. Navy, 1989).  Where management gets into trouble is when it ignores its own policies and procedures and fails to address a problem in a timely manner.  The MSPB and arbitrators are not there to be “dust busters” to clean up a mess that the organization has allowed to fester.

Another major misunderstanding where managers must be cautioned is that a disciplinary/adverse action cannot be taken for approved leave.  In the influential case of Cook v. Department of the Army, 18 M.S.P.R. 610 (1984), as a general rule, an agency’s approval of leave for unscheduled absences precludes the agency from taking an adverse action on the basis of those absences.

In Holderness v. Defense Commissary Agency, 75 M.S.P.R. 401, 404 (1997), the Board carved out an exception to the general rule whereby to sustain an action based on excessive approved absences, an agency must establish that:

  • an employee was absent for compelling reasons beyond his control so that agency approval or disapproval of leave was immaterial because the employee could not be on the job;
  • the absences continued beyond a reasonable time, and the agency warned the employee that an adverse action could be taken unless the employee became available for duty on a regular, full-time or part-time basis; and
  • the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis.

There is a very recent case that I suggest people reading this article review.  The case is Jessica Fox vs. Department of the Army, 2014 MSPB 6, DC-0752-11-0872-I-1, dated 29 January 2014.

In this case:

“The appellant petitioned for review of an initial decision that sustained the agency’s removal action based on charges of inability to perform the duties of her position and work a regular schedule.  The appellant was a Program Manager in Washington, D.C.  She had not worked in the office for about two years prior to her removal in July 2011.

The agency denied the accommodation she requested — telework status (working from home) on a full-time basis.  One day after the effective date of the removal action, the appellant applied for immediate retirement.  On appeal to the Board, the administrative judge found that she was adjudicating an adverse action appeal, not an involuntary retirement appeal.  The judge found that the agency proved both of its charges, that the appellant failed to establish her discrimination claims, and that the appellant’s removal promoted the efficiency of the service. On review, the appellant contested virtually all of the judge’s findings.”

However, the Board affirmed the initial decision as modified, still sustaining the agency’s removal action.

In the opinion of this writer, this decision might have gone another direction because the agency failed to prove the charge of excessive absences.  In the synopsis of the decision:

“Among other things, a charge of excessive absences requires the agency to prove that the absences continued beyond a reasonable time, and that the agency warned the employee that an adverse action could be taken unless the employee became available for duty on a regular full-time or part-time basis.  The agency failed to prove this required element of the charge.  Although the agency notified the appellant on multiple occasions that her failure to return to work or submit acceptable medical documentation in support of her leave requests would result in her being AWOL, the agency did not notify the appellant that her failure to return to work could lead to discipline even if her absences were approved.”

Keep in mind that her absence from the office was over a two-year period.  While there is no regulatory timeframe as to how many months must elapse before an agency can take an action, as a general rule, an absence of six months to a year, for which there is no foreseeable end, is considered a reasonable period where an action may be warranted.

In cases where a person is medically unable to perform, an agency must show that:

  • The employee is unable to perform the duties of his or her position
  • The employee has been absent for a substantial period of time and the prolonged absence is invoking a hardship on the agency’s ability to accomplish its workload
  • For medically documented reasons
  • According to the medical documentation, there is no end in sight
  • The employee has been warned in writing that he or she may be subject to removal if he or she does not return to work on a regular basis.
  • This charge can be used even when the employee has been on sick, annual, and/or LWOP for an extended period of time

A reading of this case is also instructive because it addresses an issue that frequently arises in circumstances like this, that being a request for a reasonable accommodation for the person to virtually telework.

Excessive leave can and does have a detrimental impact upon an organization.  In today’s environment of sequestration and continual budget reductions, an agency does not have an excess capacity to tolerate leave abuse and prolonged absence for which there is no foreseeable end.  Failing to take action when these situations occur only adds more stress to an already stressed workplace.  Each case of unauthorized absence or excessive absence cannot be ignored.  Case law is decidedly in favor of management that does the right thing in a timely fashion and uses the appropriate charge(s) to fit the circumstances.

About the Author

Since retiring in 2011 after nearly 40 years of federal service, Bob Dietrich has been active in training supervisors and HR staff on FLSA and FMLA. He has a three-day course that he can bring to your agency, and he may be reached through the website.