Addressing AWOL


Uploaded by USOPM on 15.12.2011

Transcript:
Good afternoon!
Welcome to today's forum!
My name is Ken Bates.
I'm a Senior Advisor to the Assistant Director
for Workforce Relations & Accountability Policy.
Glad to see all of you here
and welcome all of you that are watching via webcast.
This is a session on addressing AWOL.
One thing that we're not going to be having today,
which we had at our last webcast, was a fire drill.
Those of you that were here at OPM
or were watching on the webcast you will all...
you will never forget the evacuation
and the extension of our forum for 30 or 40 minutes
while we exited the building,
so in the unlikely, very unlikely event
that, that occurs again
and you're watching on the web,
just be sure to check back in every five minutes
because we'll come back on and you'll...
and continue where we left off.
All right! Today's format is a little different.
It's really two parts.
The first part we'll have...
discuss the mechanics of AWOL;
what it is, how to address it,
some case law,
and for that we have two experts on my left here,
that are already seated, ready to go.
Both of them come from CWRAP.
Both of them are very experienced in the area.
First is Lisa McGlasson.
She is a colleague of mine, also a Senior Advisor,
and she prior to working with...
coming to OPM, she worked at DoD
as the Chief of Labor & Employee Relations,
the Defense Contract Management Agency.
I happen to know she has
even experience dealing with AWOL overseas.
So if any of you have peculiar questions in that regard,
she is able to handle that.
Second, Jason...
Jason, the second panelist,
joins us also from our office at CWRAP,
and prior to working at OPM
he was an Employee Relation Specialist
at the Department of Agriculture.
Our three panelists,
that will be the second half of the forum this afternoon,
come to us from outside of OPM,
bring real-world experience to the issues.
They're going to discuss tips
and they're going to discuss real world advice
on dealing with AWOL, addressing AWOL.
First will be Rebecca Tittle,
Director of Labor and Employee Relations
at the Naval Sea Systems Command.
Seated upfront, you'll see her in a minute.
Cindy Wheeler,
the Director of Employee Relations, Benefits,
and Worklife Division at FAA.
And finally...
finally Randolph Wilkinson, a team leader
in the Department of Agriculture's
Animal and Plant Health Inspection Service or APHIS,
in their Employee Relations branch.
I want to strongly encourage everybody to make
full use of the opportunity here.
Ask questions.
If you're viewing via web
you can send your questions in via email to cwrap@opm.gov,
that's C-W-R-A-P @opm.gov.
We'll try to... we'll field as many as those as we can
and get them to the panelist and to our initial presenters,
and from the audience here,
please be sure to wait until you have a microphone.
We have a couple of gentlemen in the back
who have microphones ready to put in your hand
so that everybody, not just here in the auditorium,
but also on the web can hear your question.
So just recall... remember that.
In your packet
you'll find biographies of today's presenters, panelists,
the copy of the PowerPoint presentation
that they're going to be making use of.
And please, please, complete the evaluation form,
be on the web or here in the audience, give us feedback.
If you think they're doing a good job, let us know.
If you think we need to look into
whether or not they were AWOL today, let us know.
So either way.
Finally, as you see me here,
make sure you turn off your cellphone.
Silence that, that's embarrassing
and disruptive if it goes off.
All right!
With that, I'm going to turn it over to Lisa and Jason.
Okay. Thank you Ken.
Good afternoon!
Now that you know who we are and why we're here,
we're going to jump right in.
So we're going to lay a foundation initially here.
Let's discuss the definition of AWOL.
As you probably know, if you do Employee Relations,
you may have looked for the definition,
you may have scoured Title 5 and 5 CFR and
unable to come up with something, and that's true.
There is no definition there,
but it's a real simple concept.
The concept is AWOL is a non-pay status
that covers absence from duty which has not been approved.
Seems simple enough,
but if you do ER for any amount of time
you'll find that the simple things
are the things that give us the most grief, the most pause,
so we decided this was a good topic to
talk about and revisit.
So why do we care?
Why do we bother with AWOL?
Why do we address AWOL issues?
First and foremost, AWOL is misconduct,
plain and simple.
Attendance issues are the most challenging issues
that we face in the Employee Relations arena,
because there are multidimensional,
many reasons that individuals
are not where they're supposed to be
at their appointed time,
and of course every federal agency has an important mission.
Employee's failure to report to work
absolutely has a negative impact on that mission.
Thank you, Lisa.
Again, my name is Jason Thomas.
Good afternoon everybody!
Just jump right into some of the AWOL Facts.
Now, to clarify I want to make sure that
everyone knows we're talking about AWOL
as far as the civilian workforce is concerned.
But having said that,
first, AWOL is an employee attendance issue.
An agency may discipline an employee who is AWOL
and we'll talk about how to move forward with that.
But to add to the definition of AWOL,
remember an employee is AWOL
when they're absent from their assigned place of duty,
plus one or both of the following,
either the absence was not authorized
or the leave requested by the employee
has been properly denied.
Now, don't forget, AWOL is misconduct
and an agency may use AWOL as a basis for discipline,
but before we get into that we should distinguish
when an employee is actually AWOL
and how AWOL has come to be defined over time.
Now, the legal elements of AWOL have been established
through decisions of the Merit Systems Protection Board
and the Federal Circuit.
As we mentioned case law has done a lot in terms of
redefining AWOL over time.
And while Lisa mentioned that
there is no government-wide definition for AWOL
within the CFR,
if you really think about it,
there is not a definition for computer misuse
or anything like that in Title 5 or the CFR.
So it's really up to the individual agencies
to decide on their definition
and how they apply it in adverse actions
and then the Board will interpret what the agencies did.
Again, a lot of AWOL cases have been decided through
third party adjudication and administrative case law,
and we'll spend some time discussing those
throughout the presentation.
And keep in mind, every AWOL case is unique
and the independent facts of each case
will be taken into account.
Now, I'll take a step back,
and to prevent some of the adverse actions
from happening in the first place,
why not take a look at what can be done early on,
i.e., what the supervisor should be doing
to address attendance deficiencies in the first place.
So a step back, Addressing Attendance.
Supervisors should establish written leave procedures
for their employees to follow.
As ER practitioners, ER specialists, let them know,
supervisors are responsible for communicating clear procedures
for requesting leave.
Supervisors are responsible for communicating clear procedures
before requesting leave,
And moreover, the policy should be in writing
and supervisors, we recommend that
you even talk to your HR office or your ER office
and have them review the procedures
before distributing them to the employees.
If you have a quality written product,
it's going to go a long way later on.
The procedures, the written procedures,
should identify what steps the employee should follow
to officially request leave
and what the employee should expect
once the leave is approved.
Now, for unanticipated call-in situations
such as personal emergencies or if the
employee comes down with a flu or something like that,
the ER specialists should encourage managers to ensure
that the employee speaks directly with the supervisor
when calling in and requesting leave.
It should all be outlined in the written procedures.
It should also... the procedure should also be clear
about who the employee is expected to call
when the supervisor is going to be unavailable;
if they are on leave, if they're maybe in a meeting,
if they're working off-site,
there should be something in writing about
who is next in line to call in the absence of the supervisor.
And the last thing on the written procedures,
be aware that bargaining unit employees
may have a collective bargaining agreement
and may outline additional leave requesting requirements
or call-in procedures.
For example, additional time may be negotiated
with respect to how many days
they have to provide medical documentation
when returning from sick leave.
ER specialists should check the applicable CBA to be sure
and they can work with management to do that.
The second thing there,
address tardiness or leave abuse promptly.
This is to reinforce the established procedures.
Leave abuse is like any other problem,
performance problems or otherwise.
Typically, they don't take care of themselves.
If the supervisor does nothing
and they wait, and wait, and wait,
it will more than likely just exacerbate the problem,
so deal with those leave abuse and the tardiness issues
as soon as possible.
And the last thing there, document.
Documentation; a supervisor should include instances
of when an employee is tardy
or when they are not adhering to those internal leave policies.
Having your managers keep notes is highly recommended.
And speaking of promptness, do not wait to document either.
Now, regarding
approving or disapproving leave in the first place,
we have some applicable Board law that I'd like to share.
Leave is always based...
leave is always approved based on the needs of the office,
not based on the reason for the request,
including if the employee is incarcerated.
In the case, Benally v. Department of Interior, in 1996,
we had Benally, the appellant, he was arrested
for driving with a suspended license
and he was sentenced to seven days in jail.
Well, he went ahead and called his supervisor from jail,
requested the following week of annual leave.
The supervisor gave him the thumbs-up,
said that we approve the annual leave,
and the supervisor found out later that day
that the employee was actually calling from jail.
They retroactively said,
actually you're needed at the office,
we're going to tell you to come in,
and this is... the important point is this,
and the Board stated it pretty eloquently here,
"No Board case ever authorized an agency to deny
or to rescind annual leave based purely on the purpose
for which it was requested."
So the Board ultimately ruled that the agency
could not charge the employee AWOL as it had done
and proposed the employee's removal,
because the employee's request for leave
during the seven day period of his incarceration
was approved in the first place,
and the agency at the appeal stage failed to show
that the employee was needed at work,
and the agency argued that only after the fact
that the appellant had requested
leave from jail in the first place.
So the main point is that leave should be granted or denied
based on the needs of the office,
not the reason the employee is requesting it.
Now, on the flip side of the coin,
remember the supervisor still has discretionary power
to deny leave.
So in Joyner v. Navy,
the Board stated, "Where an employee
who is incapacitated for duty has exhausted
all of his/her leave,
it is not improper to deny leave without pay (LWOP)
where there is no foreseeable
end in sight to the employee's absence
and the appellant's absence is a burden to the agency."
I will definitely talk about leave without pay issues later,
but just as the supervisor should not deny leave
based on the reason it requested, like in Benally,
they should base their approval of leave
on the needs of the office,
and in this case,
properly denying it when it's appropriate.
In this case, Joyner was charged AWOL on five separate occasions
over the course of several months,
and the employee had exhausted all of her sick leave,
and was subsequently denied her request for annual leave;
she had a remaining balance of annual leave,
she wanted to get in the Leave Donor Program
and she wanted to use leave without pay.
The agency refused to grant the employee any of the requests,
because they had needs for her to be at the office.
The employee on appeal claimed that this was unreasonable
and that her leave without pay request should have been granted
and thought that the supervisor abused their discretion.
All of it is articulated here,
and the agency can deny the appellant's request
for leave without pay,
again, based on the needs of the organization,
and this is done by demonstrating
the reasonable need for the employee to be at work.
Now, ultimately at the...
the Board affirmed the agency's right to deny the leave,
and they held that the denial of the employee's
leave without pay request
did not constitute an abuse of discretion,
and moreover,
it did not constitute an abuse of discretion
with regard to receiving donated annual leave
under the Voluntary Leave Transfer Program.
So you see, looking at the two cases, Benally and Joyner,
the key principle is that supervisors
should be approving or denying leave
based on the needs of the office.
Now, annual leave and leave without pay are discretionary,
but in a way if you think about it...
if you think about the concept in terms of
what's needed at the office,
it really take the subjectivity out of it,
because what happens is,
the agency will approve the point if they can show that the
employee's absence affects the office.
So in the adverse action cases that I just talked about,
the Board will determine this.
And with that, I will turn the floor
or I guess the microphone back over to Lisa.
All right! Well, we're going to now...
now that we've decided what leave is,
what leave without pay is, what AWOL is,
and now we're going to talk about
what you do when you have a case that really is AWOL.
Again, reminding supervisors continually
of their responsibility
to approve leave and deny leave using those objective bases.
Let's say, you've got an employee
who just doesn't show up one day, and that's our situation,
most of the time when we're taking about AWOL,
folks just aren't where they're supposed to be.
So pretty simple to start, we're going to record AWOL.
Recording AWOL is going to be dependent on your
internal payroll system,
and whatever your internal payroll practices are.
Put it in fractions of hours in the same manner
that your payroll system works,
same manner that your CBA requires.
Notating AWOL is not a disciplinary action.
Remember,
one of the basic ethics rules of government service is
eight hours work for eight hours pay,
so if you haven't done eight hours work,
we can hardly give you eight hours pay.
So it's not a disciplinary action to
refuse to pay someone when they didn't perform work.
However,
if the supervisor does wish to take disciplinary action,
there are additional steps required.
So let's look at the Basic Approach, Basic Roadmap
for taking disciplinary action for Unexcused Absences.
Again, this looks familiar
because this is the familiar area
for all disciplinary actions.
Make sure the employee is on notice.
In this case, make sure the employee is on notice
of where they were supposed to be.
What time they were supposed to be there.
In short, if there's a schedule,
if you have rotated posted schedules,
if you have rotational basis,
make sure that they knew the schedule existed
and that they knew they were on the schedule.
If you have had a conversation with an employee
that works a regular normal tour of duty,
make sure they understand that.
Work with your manager to see how you can show
that the employee was on notice of that.
Ensure the employee was notified of the policy and procedures.
Again, you could have an employee who was brand new
to the work unit,
and didn't know that they were supposed to call
within a certain period of time
or who they were supposed to call.
They just thought they could send an email and,
you know, if the manager didn't get it, then
they didn't really have any idea what to do next.
So again, making sure that the employee was on notice
of what the policy was.
And determine appropriate discipline
based on the circumstance of the case.
We talk about this with all disciplinary actions.
We talk about taking progressive discipline
and taking appropriate discipline
based on the circumstance of the case.
Let's say, you've got somebody again who is brand new,
first time they've ever been AWOL,
they're five minutes late because
they're just trying to figure out
what the bus system is in Downtown D.C.,
and they don't get to the OPM building on time,
are you going to take a 30-day suspension
on that first five minute delay?
But if you have somebody who is continually
not where they're supposed to be,
not when they're supposed to be,
you might want to look at taking a little bit more severe action.
I have a trick question for you.
Can you charge an employee AWOL if they are at work?
Yes?
Hey, we got some. All right! Cool!
We can stop now, because they already know the answers.
Absolutely!
Actually, when an employee is on the agency premises
but not where they are supposed to be,
the old Where's Waldo, you keep going by the empty desk
and the empty desk and the empty desk,
and then when you go down the hall
they're in some other work area
or the smoking area or the cafeteria or the...
and they're continually
someplace other than where they're supposed to be,
an employee actually can be charged with AWOL, and the MSPB
upheld that in Buchanan v. Department of Energy,
when they said an employee need not be absent
from the work site to be found AWOL.
So again, we're talking about
making sure that people are not only
coming in when they're supposed to,
but they're staying where they're supposed to
and getting the work done.
Now, again, looking at our new employee that just walked in,
maybe they got there five minutes late
because the bus was late,
and they're a little bit confused about
what room they're supposed to go to for their orientation,
probably not going to charge that AWOL.
Again, looking at the circumstances of the case,
may not have been your best hiring decision,
but that's a different situation,
you've still got the probationary period
to deal with that.
That's next month's topic right?
But the... but in Buchanan,
the Federal Circuit agreed
that the employee violated... in Buchanan,
it was a last chance agreement,
where the employee was continually away from her desk,
and they proposed disciplinary action and said,
look, you've got to be at your desk,
you've got to keep doing your job.
We need you here to do this work.
And put on a last chance agreement
to avoid the initial disciplinary action.
When that failed, the agency took the action
and the Federal Circuit agreed
and the court said that the agreement was unambiguous
and it was real clear that she was supposed to be doing the job
that she was hired to do during the duty hours, so.
All right! Now, our little friend
that came in the first day late on the bus,
are we going to let that employee
continue to come in late on the bus everyday,
day-after-day, week-after-week?
Yes? No?
Oh, come on!
No, no, we're not.
And we don't have to,
and the MSPB actually stands behind that, behind us on that.
In Williamson v. Department of Health and Human Services,
there was an employee who was continually late
and kept coming in and saying, not my fault, not my fault,
you know, oh, the traffic, oh, the transportation, oh,
this that, the other, my car broke down.
It's an employee's responsibility
to get themselves to work.
Now, that doesn't mean that a supervisor shouldn't,
to the extent possible work, with their employee
on making some flexibility arrangements,
flexible times, different things that they can,
again, within the needs of the organizational measure.
But if you've got a security guard
that needs to be at an appointed place at an appointed time,
it's a little more difficult to be that flexible.
But there are flexibilities
when we do have that ability to be flexible,
we want to use those flexibilities as possible.
Leave Restriction Letters,
that's another flexibility that we have.
These are non-disciplinary.
I know most agencies use these,
many agencies use them in different ways
to let employees know that we're paying attention.
In some cases that's enough.
Remember, discipline is intended to change the behavior.
What we really want is for employees to come in,
be at their appointed place of duty and do their job.
And when that can happen, because we have a conversation,
a Leave Restriction Letter may be a way for a manager
to sit down and have one of those tough conversations
with an employee.
It sets out a format for the conversation,
lets the employee know what the expectations are,
again, reiterates what the policy is
with regard to procedures,
talks about how long an employee would be on restriction,
and lets the employee know
what their current balances are
and what they need to do to request...
request leave in the future
and what happens if they don't follow those procedures.
So remember a few slides back we talked about
how we set up the case
and we have to ensure that the employee was on notice,
and what their responsibilities were
and what the procedures were,
this is an additional way
to ensure that the employee is on notice
and is aware of what those procedures are.
Now, one caution prior to
developing Leave Restriction Letter and entering that realm,
check your CBA,
because your Collective Bargaining Agreement may have
some provisions on going down that direction
or going into disciplinary or pre-disciplinary issues.
Great!
As Lisa was just explaining,
the Leave Restriction Letter can be a great tool
when it comes time to actually charge AWOL,
the supervisor who had already hopefully
provided the employee with written leave procedures,
but now they have a document that shows
that the employee was on full notice
about their unexcused or excessive absences.
So let's remember that to charge AWOL
in an actual disciplinary action
the following conditions must be met:
The employee was instructed to report for duty
and fails to do so,
or the requested leave was appropriately denied
and the employee did not show up for work,
or the employee did not provide medical documentation
or the documentation is insufficient
or not submitted within the time frame provided.
The decision to take action for AWOL
is at the discretion of the agency
after consideration of the facts and circumstances,
in most situations it will be different, as I mentioned.
In a written disciplinary action
or even a Leave Restriction Letter,
the manager should discuss the impact of the employee's absence
within the letter,
for example, indicating that the employee...
that other employees have had to pick up the work
for that employee who is AWOL
or show that the productivity in the office
has declined over time as a result
of that employee's absence.
And keep in mind, bargaining with employees,
the CBA may dictate what medical documentation
and what time frames are required.
And going to some more case law,
what does the MSPB have to say
about these adverse actions based on AWOL?
Well, MSPB has consistently held
that there is a connection between AWOL
and the efficiency of the service standard,
Unauthorized absence by its very nature disrupts
the efficiency of the service.
In Crutchfield v. Navy,
Crutchfield was a transportation clerk
and he was charged with numerous instances of AWOL
and issued a proposed removal.
Now, the Board ruled that under the circumstances
the agency reasonably believed that
there was no foreseeable end
to the appellant's unscheduled and excessive absences,
and it was also concluded that the penalty of removal
was within the parameters of reasonableness.
Now, it's not just promoting the efficiency of the service
if the AWOL charge can be proven,
but remember how absences
can affect productivity of the office that I just mentioned.
Well, that's why very early on
the MSPB addressed the issue of nexus as it relates to AWOL.
And they had said,
The Board has determined that unauthorized absences
are directly related to the performance
of an employee's duties.
And one of the first times this was articulated
was Williams v. Army back in 1984,
and they stated that, "The relationship between
an employee's unauthorized absences
and the efficiency of the service is so direct
that proof of unauthorized absence is generally sufficient
to establish that nexus."
In Williams, the employee was removed
from his position of a food service worker for AWOL,
and in the case the Board said that the agency established
a clear nexus between its charge of absence without leave
and the efficiency of the service.
So again, quite simply,
the nexus and the efficiency of service standard work together,
but from a very early point the Board made it clear
that unauthorized absences
are directly related to performances of one's duties,
so there is an obvious nexus
and the Board has been applying that concept ever since.
Now, there is an additional charge
that oftentimes might complement the AWOL charge
if the circumstances are right.
And that is charging 'Failure to Follow' as well.
When an employee is AWOL and has not requested leave,
if you charge 'failure to follow instructions'
or failure to follow leave requesting procedures,
you can do that if you can prove the following elements:
There were proper leave procedures in place,
that the employee was aware of those procedures,
and the employee did not follow them.
Now, the 'Failure of Follow' charge
can be upheld by third party adjudicators
even if the AWOL charge does not hold up.
For example, this can allow the agency to correct behavior
in cases where the employee comes back later
and submits acceptable medical documentation.
Moreover, if the employee had been on a
Leave Restriction Letter,
the evidence would be clear that the employee was aware
of the proper leave restriction and requirements.
And if the agency... if you think about it,
the agency charged the employee with both AWOL
and failure to follow leave restrictions procedures,
failure to follow leave procedures,
if they do not win the AWOL charge,
but win the second charge,
yes, the penalty can still be mitigated
because they didn't prove all the charges.
But compare that to, if they only charged the AWOL,
if they lose that, they're going to lose the case entirely.
So oftentimes if the circumstances are right,
charge both.
And there is... in fact, there was a case from the 1990s
that the MSPB dealt with that very concept,
and that was Holderness v. DCA.
Supervisors cannot take disciplinary action
if they already approved
the employee's sick or annual leave unless
one of two conditions exist:
the first one, the employee failed
to follow leave requesting procedures,
or if they make excessive use of unscheduled leave without pay.
Now, the supervisor,
again, also should not consider the employee's approved absences
when evaluating their performance.
I'm not going to talk about performance,
but keep in mind that if the employee is out of the office
and they're on approved leave,
you can't bring that into their performance
appraisal at the end of the year.
The Board in this Holderness case said,
"As a general rule, the agency's approval of leave
for unscheduled absences
precludes them from taking adverse action
on the basis of those absences."
However, in the analysis the Board also said
that had the agency also charged the employee
with failure to follow leave requesting procedures,
the result may have been different.
And in the immediate case,
the agency removed an employee for excessive absences
over a period of several months,
during the hearing it was discovered,
lo and behold, that the employee
had actually been on approved sick leave the whole time,
and she was charged with excessive absences in AWOL.
Now, at the initial stage
the AJ actually found in favor of the agency
and said that the leave was excessive,
they mitigated the penalty to 60 days suspension,
which they thought was the maximum reasonable penalty.
However, the Board reversed it entirely
and said that the AJ erred in ruling that because
if it... had it been leave without pay,
they would have had a point, but they were actually...
charged the employee with AWOL because of sick leave,
and because that was approved
the agency had no ground to remove
or discipline the employee at all.
So as I said, the Board also stated that
disciplinary action could still result after the approval...
after the approval of the leave,
if the employee failed to follow those procedures
or when an employee makes excessive
use of unscheduled leave without pay.
The second exception there did not apply in the immediate case
because the approved leave was sick leave,
not leave without pay,
and basically the Board told the agency
there was nothing they could have done.
The point is that,
if you charge failure to follow leave requesting procedures
in a case like this as a complementing charge,
it could have resulted in a win for the agency.
Now, speaking of leave without pay,
some supervisors may not fully understand
the difference between AWOL and leave without pay,
so let's clarify the difference.
Leave without pay is an approved temporary nonpay status
and absence from duty.
In most instances,
granting leave without pay is a matter of supervisory discretion
and may be limited by agency internal policy,
and we're going to talk about
those several exceptions in a little bit.
But in addition, in general,
management should not retroactively charge AWOL
if the employee was granted leave in the first place.
An employee who fails to provide requested medical documentation
may have previously approved
leave without pay changed to AWOL.
Now, the basic point is keep in mind,
leave without pay is an approved leave status, AWOL is not.
And to talk a little more about those exceptions
and to talk a little bit more about other leave issues,
I'll turn the floor and the mic back over to Lisa.
Okay. We're talking about leave without pay
and the approval of leave without pay.
One other important point is when leave without pay
or leave is disapproved by a supervisor,
the Board will review the disapproval
to ensure that the denial of approval leave
or disapproval of leave was appropriate and was reasonable.
So be aware that just because you denied an employee's leave
and then the employee didn't show up,
and the employee was charged AWOL,
that doesn't necessarily carry through,
the Board will review the supervisor's decision
to ensure that, that was a reasonable denial of the
request for leave.
And leave without pay, again,
difference between leave without pay and AWOL
is probably pretty clear
to most of the folks here in the room and on the web,
because it's a real easy distinction.
One is approved, one is not approved.
However, you know, experience tells us that
many supervisors do have great difficulty with this.
Many times I've had phone calls
where supervisors called and said, hey, I've got an employee
that didn't show up this morning
so I put him on leave without pay.
And you go, great, they're on approved leave now.
So you have to be real careful that they understand that.
Now, a good time to take a quick break for a question
for the webcast.
We have a question from a webcast viewer who asks
a question about their employees
who are on a straight eight, nine or ten-hour work schedule
and they are not provided any meal period at all.
If those employees are seen roaming the building
or otherwise outside smoking,
would this be considered AWOL?
It may be AWOL,
I'm presuming that they have a straight schedule
without a lunch period
because there is some safety related
or some work of that nature generally
when you do not have work period,
just because you must be in the work location for that period,
that's why they're not given a break,
given a meal break.
So again, it's situational.
It may be that those individuals could be AWOL
if the mission requires them to be in a particular location
and they are not there when the work needs to be done.
On the other hand,
everyone needs biological breaks from time to time,
and if that's the case, you can hardly chain them to a desk.
So it is going to unfortunately be situational.
The old HR answer of it depends.
All right!
So with regard to leave without pay
there are sometimes when a supervisor
is not able to deny leave without pay.
There are certain circumstances
in which leave without pay is an entitlement,
so beware of those entitlements.
Those entitlements include,
this is not an exhaustive list,
but this is the heavy hitters here:
Family and Medical Leave Act, Uniformed Services,
Services Employment and Reemployment Rights Act,
we call it USSERA most of the time,
and the Executive Order 5396, which provides...
this is... goes back to 1930, this is not a new one,
but it provides that disabled veterans are entitled
to leave without pay for necessary medical treatment.
It's not a new Executive Order,
but it's one that we're seeing
a little more activity on these days
as we bring more veterans and more disabled veterans
into the workplace under some of the new hiring authorities
and things as we are involved in wars around the world
and have new veterans coming into the workforce.
So let's talk about USSERA, Military Duty now.
We talked about the needs of the agency.
We talked about approving leave
based on the needs of the agency
and the requirements of the mission,
but there are limitations to that concept.
We need to recognize that federal regulations do provide
a blanket approval for military related absences
such as training and deployment.
In Jeffrey Merritt v. Department of Navy,
the MSPB held that "Regulation requires
that upon request an appellant be granted
a leave of absence for military training.
In Jeffrey, Jeffrey was a special agent
with the Naval Investigative Services,
he was also member of the Army Reserve.
He got orders sending him to flight training for nine months
and the supervisor attempted to deny his request for leave,
and they said that it was excessive,
and they charged him with unauthorized absence
when he went off to his military training.
The Board held that request for nine months
was reasonable based on Title 38.
So again, we've got a lot of folks here coming up
with military orders, individuals you know...
supervisors will know who on their staff is a Reservist,
National Guard,
and experience lately is that the orders aren't coming
with tremendous amount of lead time.
We've got some folks in the last 12 months
getting orders six, eight weeks before they have to go, if that,
some of them are getting shorter times than that.
So it is a burden,
but again, we need to support those military folks,
and Title 38 does that,
and nine months is not unreasonable
to allow someone to go.
If you have an individual who is in a critical position,
they can be exempted from some of the military requirements
and someone who is in the Guard or Reserve
wouldn't necessarily be in a position
that you couldn't let them go for that time,
and that's a staffing issue, another forum.
Okay, An agency must not charge AWOL
when employees are entitled to sick leave.
So employee comes to the supervisor, says,
hey, I've got a doctor's appointment tomorrow,
I'm requesting sick leave, that is an entitlement.
Annual leave is not an entitlement,
sick leave is an entitlement
if it meets the provisions in Title 5, 5 CFR.
So receiving medical treatment, incapacitation,
or they're providing care for a family member
who is incapacitated,
or making arrangements necessitated
by the death of a family member,
or to attend the funeral of a family member.
Again, the old sick leave rules,
we all know the rules.
There have been cases before the MSPB
where employees have been removed for AWOL.
They get to the MSPB at the hearing
and present evidence that they were incapacitated
and they would have qualified for sick leave
and the MSPB has overturned the AWOL.
Again, another reason to put in
that failure to follow leave provisions,
failure to submit medical documentation,
some of those other charges as well.
Okay, an employee who is entitled to sick leave
under 5 CFR 630 cannot be charged with AWOL.
Again, can't say that enough,
denial and/or denial of request for sick leave,
when the provisions are met of 5 CFR 630 can't...
just not able to deny them and then charge AWOL for that.
Now, you can go down the road of excessive absence,
you can go down several other avenues,
but AWOL is not the... not one.
All right!
Family Medical Leave Act, probably all familiar with that,
12 weeks entitlement for, and there is a list of reasons,
again, these are entitlements under the law,
these are not discretionary on supervisors;
supervisors don't have the choice.
These are not related necessarily to anything
other than the employee's need and the entitlement.
We don't get back to agency mission,
agency need at this point,
that doesn't come into the equation.
All right!
When an employee does qualify for FMLA leave
and they're entitled to leave without pay,
they cannot be charged AWOL, regardless of the circumstances.
In Ellshoff v. Department of Interior,
the employee was...
he was a botanist and he had mental illness...
she was incapacitated for several months
due to severe depression
and she initially asked her supervisor about FMLA.
She was told that she would be declined
because FMLA was not appropriate for mental illness.
Again, incapacitation for duty, it doesn't matter
what the illness is,
it's an illness, and it qualifies.
So in that case she was retro... she... excuse me,
she was upheld by the Board when she appealed
and she... mental illness is covered under there.
Now, an employee can't retroactively invoke FMLA,
unless, there is only one situation
when an employee can retroactively invoke FMLA,
that's when they and their personal representative
are both incapacitated during the applicable time.
Kind one of those little confusing things,
but remember I said before,
an employee who is charged with AWOL is removed
and they go to the Board
and they present medical documentation
to show that they were ill,
and that they were entitled to sick leave,
and at that point the Board overturns and says,
well, the employee was sick,
they were entitled to sick leave, so they weren't AWOL.
But if the employee is entitled to FMLA,
the basis of the Family Medical Leave Act
states that the employee is required
to present the medical documentation
at the time of their requesting FMLA.
So remember, they have to...
they have to show the FMLA documentation
at the beginning of the stage.
So it doesn't work the same way with FMLA
as it does sick leave.
The employee can't come in at the end and we say --
supervisor says, hey,
you haven't been here for the last two months,
I'm charging you AWOL.
Oh no, I'm not retroactively invoking FMLA,
because in that case the employee cannot retroactively,
because you have to show the documentation upfront.
And so the Board said, you're not...
you can't support a FMLA clause afterward,
because part of being eligible for it
is bringing the documentation in ahead of time.
All right!
We've have about ten minutes for any questions,
anything from the webcast?
Yes.
Any web question, okay.
We have a couple of questions concerning sick leave.
If an employee has exhausted all of their sick leave,
can AWOL still be charged?
I'm assuming that the employee did not show up for work
or that they've been requesting leave
and the supervisor is declining it?
We don't have all of that information.
They are saying that
the employee has failed to request sick leave
and they have exhausted any leave in any event,
would you charge AWOL in that circumstance?
Well, it's certainly an option like...
I mean, there are so many different factors
that could come into play
depending on if they have one of those exemptions,
depending on if they are requesting FMLA,
all those different needs,
but if you're just talking about strictly sick leave,
it's an employee's right to invoke sick leave,
but once their balance has been exhausted,
there is no reason the agency can charge AWOL at that point.
It is very fact dependent.
If an individual has run out of all their sick leave
and they have provided medical documentation
that would support their entitlement to sick leave...
-So leave without pay. -if they had it on the books,
the management is then not compelled
to approve leave without pay.
They may be entitled to some FMLA leave without pay,
so the 12-week period,
they may have an entitlement to that,
but beyond their FMLA entitlements,
they wouldn't be entitled to further leave,
and at that point if they still showed
that they were medically unable to return to work,
AWOL might not be your best charge.
It's a possibility,
but at that point you might go with unavailability
or perhaps an excessive absence.
Because the individual...
if the individual still had medical documentation
to show that they were incapacitated for duty.
Is that... we have a question in the room,
do we have a mic?
If you have a question in the room
please wait until somebody comes to you with a microphone
so that we can hear you on the webcast as well.
I just want to get clarification on that.
So if we place an employee on leave restriction
and one of the rules is that we will only approve
annual or leave without pay
that's used for a medical condition
if it meets the criteria under FMLA,
are we allowed to do that?
Does that make sense?
So the employee has exhausted their sick leave.
Right.
Well, if you go back,
that's pretty much the same scenario as,
I believe it was Holderness,
where the employee had exhausted their sick leave
and they were asking for...
to use their annual leave for their...
or leave without pay or be part of the Leave Transfer Program,
actually I believe that was Joyner, right?
What's the slide number?
The slide number is 9, you can go back there.
And we can talk about Joyner right here,
this employee had done exactly that,
they had exhausted all their sick leave.
They had an annual leave balance,
in addition to that they were requesting leave without pay
and they were requesting
to be put on the Leave Donor Transfer Program.
They were denied and the Board upheld all of that.
So if your question pertains to,
are you required to allow an employee
to take the remaining annual leave balance
in lieu of their sick leave?
No, that's not the case.
Thank you.
Nor are they entitled to leave without pay.
However, like if there is...
And I also heard and maybe... correct me if I'm wrong,
I also heard in your question
the Leave Restriction Letter would include a provision
that would not allow them to use their annual leave
for any purpose other than medical reasons.
Yes, at least to FMLA.
So it's just pertaining to FMLA, but not...
I mean, it depends what the Leave Restriction Letter said,
if it said, we'll allow you to use your annual leave balance
for you... in place of the sick leave
and that's what the Leave Restriction Letter said,
you signed it and that would be...
that would cause the agency to want to approve that leave,
but unless... if it's specified FMLA leave in particular,
then you're not required to give them any type of sick leave
or use their annual leave for any type of sick leave,
only the... in the applicable cases of FMLA.
Yes, it would say that
it has to meet the eligibility requirements for FMLA
before we would approve annual or leave without pay
in lieu of sick leave.
In lieu of sick leave, yeah.
And honestly,
I think it also depends on the needs of the office,
and that goes back to the whole idea
of whether or not employees are requesting leave
because they are in jail
or whether or not they are requesting leave past
their sick leave balance.
If you can show
that the agency needs that person on duty,
that's the key factor
and the agency is under no obligation
to allow an employee to take sick leave
once they've exhausted it all, except for,
again, those certain extenuating leave without pay
and FMLA exemptions.
Okay.
Do we have...
Yes, we do have several questions
that came in just within the last minute or two.
What tends to be the general disciplinary action
taken for AWOL?
Is there...
For example, if there is just one day of AWOL?
Again, it may depend on that person's position,
if they are... if they hold a supervisory position,
if the employee is very new,
if there are...
if the employee has x amount years of service,
I mean there is always going to be aggravating
and mitigating factors.
We don't suggest that when...
we don't have like a slide that says use progressive discipline
and for the first offense do a letter of reprimand,
for the next eight hours do a three day suspension.
It really depends
on the aggravating and mitigating factors
within the specific case.
So if they're talking about one day's worth of AWOL,
if the supervisor...
it really depends, again, on the office,
how it's run,
what their position title is,
how many years of experience they have,
and how they want to go about changing the behavior.
Again, it's changing the behavior
that you're going after,
not using the charged in a punitive way.
So I would suggest, you know,
if they wanted to put the employee
on a Leave Restriction Letter,
if they're not already on one, that would be an idea;
perhaps a letter of reprimand would be another idea.
But they're certainly not restricted to those two options,
they can go for suspension off the bat,
depending on the circumstances.
We have a question in the audience.
I just would like to follow up
on the previous question we had here,
in the case that a person has exhausted all sick leave
and perhaps they have an injury where both limbs have...
you know, they are... they are not workable.
-Right. -Okay?
So I guess that would meet the restriction
that you just cited.
FMLA.
That would meet the FMLA restriction.
So in that case, I just want to make sure
that we're not really vague here,
we want to be black and white with regard to these examples
that we're placing.
Right.
And we do need to, you know, caveat all these examples
as they are very agency specific
and very position specific.
Incapacitation for an air traffic controller is different
than incapacitation for a clerk typist.
You know, you would have to meet
completely different regulations,
because air traffic controllers have medical standards
and there are certain medicines that can't work
while they're on certain medications and things.
So absolutely, when we're talking about these examples,
they are simply examples
and we need to be careful
that we're not going too down the road and saying, yes,
this is what you do every time,
because in that case an individual
who was incapacitated for duty would still be...
perhaps eligible for a FMLA or some other type of leave.
Okay.
A question from the Internet.
Yes.
We have a couple of questions about the interaction
between FMLA and Leave Restriction letters.
If an individual is required
to provide medical documentation for each instance of absence
under Leave Restriction Letter,
would they still have that requirement if they invoke FMLA?
Do we have... do we have leave people in the room,
we have leave experts in the room?
This is Doris Rippey from the Center
for Pay and Leave Administration here at OPM.
If we... it would depend if it's for a different reason,
if it's a different health condition,
they would have to present medical certification.
And I never travel without my CFR,
but I came down today without it,
but at the end of the FMLA regulations
there is information,
which I'm afraid I don't have memorized,
about how frequently you can ask for new documentation on FMLA.
So if you crack your CFR to the last chapter
and the last subsection in Chapter 630, you'll see that.
But if it's for a condition that could be intermittent,
so for example, if they have epilepsy or something like that,
or kidney problems where they would need dialysis
or something where they need intermittent leave,
then you wouldn't be able to request the leave,
and it's medically necessary,
you wouldn't be able to request certification,
medical certification for each absence.
And may I also make a...
Sure.
...I also wanted to make a clarification about
the sick leave regulations.
There is a helpful update that we made a few years
to the sick leave regulations on medical documentation
to bring it in line with the medical documentation
time frames for FMLA.
So they're both on the same schedule now.
So an employee should bring that documentation within 30 days,
or if that's not practicable, within 60 days.
So we're hoping that,
that might cut down on people being able to come to the MSPB
or at the very end of the process
be able to magically produce the documentation,
because now in the regulations
we think we've tightened that up to help agencies
out in that circumstance.
Thank you very much.
Okay.
We have a question in the auditorium.
I have a question.
I just want to say that the way our agency is set up,
and I work in Department of Agriculture,
we have our accommodation manager.
A lot of times when supervisors deny leave or charge AWOL,
then they go to the disability or the accommodation manager
and that sets up a whole different dynamic.
And I just want to know if someone can address that,
because a lot of times we've had supervisors
overturned like right within the agency.
Right.
And perhaps our panel members can address that,
so if you might readdress that question
after the break when we get our panel up here,
I think the panel members would kind of... but that will...
I am sorry, that will frequently occur in the ER world,
with the leave issues, they intertwine between FMLA
and even Workers' Comp and disability and EEO,
and those frequently intertwine.
We see the same thing with performance issues.
When we start to address performance problems,
or we start to address discipline or conduct
or attendance issues,
frequently individuals will then
kind of go down those other avenues as explanations
for their behavior or performance,
and we frequently find ourselves
involved with those other offices.
I just wanted to add,
when you're talking about reasonable accommodation,
regardless if the employee has been charged AWOL before,
or if they're just going to seek a reasonable accommodation,
there should be someone that's making that decision,
a reasonable accommodation coordinator or someone
within that sub-agency,
and they are going to determine
whether or not that person is a qualified individual
with a disability that can perform functions of their job
with or without an accommodation.
And I don't think that
they're allowed to take into consideration
whether or not they were charged AWOL,
but it should be an independent decision.
I believe that's... probably that would be assessed but...
But you may not wish to charge someone AWOL
if they have a condition.
Now, there was a case law relatively
recently in the last five, six years
regarding reasonable accommodations,
and, you know, our little friend from the example here
that the bus was always late,
that individuals whose illness makes them unable
to maintain a continuous work schedule
or a consistent work schedule,
that's not considered to be a reasonable accommodation
by the Board.
So if somebody that... you know,
well, I'll get there when I get there,
and, you know, maybe I'll be get there at 9,
maybe I'll get there at 11,
that's not acceptable by the Board.
Yes Cynthia, question?
If an employee asks for several days of leave
and the supervisor...
if an employee asks for several days of leave
and the supervisor approves only part of that
and the employee nonetheless takes...
is absent for the remaining period,
can the supervisor charge AWOL
for that extra period the employee was absent?
Yes, that's predefined.
We finally have... We have consensus on yes for that one.
Yes, the employee is only entitled
to be absent for the time... the time period that was approved.
Again, we need to refer you back to the slide
that talked about was the employee on notice,
was the employee aware of the schedule.
There are some agencies that use automated leave requesting
and approval procedures.
It is the employee's responsibility
to check that system.
So if it kicks back an email message,
and generally the email message says,
your leave request was approved, but this time it said,
your leave request was not approved,
and the employee takes off anyway,
it's incumbent on the employee to follow through and ensure
that they have approval prior to taking the leave.
And if they don't, it is AWOL.
Great!
One more question if we have time?
We can do one more.
Okay, an employee returns to work from OWCP,
they do not have any leave,
they've been asked to complete
or offered to complete the FMLA form but they refuse to do so.
They are frequently absent citing doctor's visits.
Should they be charged AWOL
until medical information is submitted?
You're saying they had been on Workers' Comp
and then they were taken off of Workers' Comp?
They came back to work, they were released.
Return to duty.
Generally, yes,
because if they have not turned in the FMLA paperwork,
then they have not... they're not on FMLA.
If they don't have approved FMLA,
they don't have an entitlement to it,
so at that point when they're not there,
that may be an attendance issue
that you need to address through AWOL.
Absolutely!
We are now going to open the panel portion of our discussion.
We have three outstanding panel members.
We have Mr. Randolph Wilkinson at the far end of the table.
He is a Team Leader in the Department of Agriculture's
Animal and Plant Health Inspection Service's Employee
and Labor Relations branch.
And that seems like a big business card,
did you fit all that across?
Oh yes.
It is.
Okay.
And next to Mr. Wilkinson we have Cindy Wheeler,
the Director of Employee Relations, Benefits,
and Worklife Division at the Federal Aviation Administration.
That's a big job too.
Rebecca Tittle is next to her, and on her right,
she is the Director of Labor and Employee Relations
at the Naval Sea Systems Command.
So outstanding folks with good jobs and backgrounds
and I'll bet a lot of stories,
and we love war stories, right,
don't we all just love to share stories
and hear about other experiences,
because generally, they're pretty amusing.
So to kick it off,
we've got some questions and we'll get some more questions,
but why don't we just kind of hear about
your favorite AWOL issue
and whichever of you'd like to start.
I'll start.
Randolph Wilkinson.
I spent a lot of my time with the Postal Service,
and the Postal Service is a very interesting place
as far as AWOL goes,
but this is my favorite story for AWOL.
What happens is that we always advice managers, supervisors,
when you get an AWOL case,
find out as soon as possible why the person isn't coming to work,
because what you don't want is them to get an ironclad excuse,
an explanation by the time they get to hearing.
So this is the advice that we give.
This one place I was working in Missouri at the time,
Southern Missouri,
and they called me and said
this employee had not been to work all week
and they wanted to fire this employee.
I said, you know, you don't know what happened.
Let's find out what happened.
They said the employee won't talk to them.
I said, look, give them... give him my number,
he will talk to me.
And sure enough I got the call,
and let's call this guy Jake.
I said, Jake, what's going on?
Why haven't you been at work?
He says, well, I don't think I can really talk to you
without representation.
I said, Jake, you don't need any representation
just to talk to me about where you've been.
You've been gone a whole week, they're worried about you,
come on, tell me why haven't you been at work,
where are you?
Well, I'm out here in the woods.
I said, the woods?
He said, oh, yeah,
about a 100 feet from the Postmaster's house.
I said, what are you doing?
Well, I've got my high power rifle here
but bastard won't come out.
I said... I said, whoa, whoa, just hold on right there,
just hold on right there.
And so you never know.
But I'd advice, anytime you're going to AWOL someone,
find out why aren't they there.
It can be interesting.
That's a tough one to beat.
Actually we just recently had a case at the FAA
and it kind of touches on one of the questions
that was brought up earlier.
We had an employee who requested 48 hours of annual leave
to go on a planned vacation with his wife,
and he only had 32 hours of annual leave left.
So the supervisor said,
no, I won't approve 48, I'll only approve 32.
So he asked on four different occasions
for leave without pay for the other two days,
and repeatedly the supervisor said no.
So the night before the planned vacation he called in
on the night shift and talked to a different supervisor
and he said, I need FMLA for two days for my wife.
So the supervisor on the night shift just wrote it down,
and he called the next day to see if it had been approved
and talked to the same supervisor and he said,
well, I have you written down.
He didn't say it was approved or not approved,
he just said, I have it written down.
So the man took the time off,
and when he came back to work he went to...
his new supervisor called him in and said,
hey, I need some medical documentation
to cover that FMLA request.
So he presented a prescription bottle for his wife
and just an office visit receipt from the doctor
in the location where they were on vacation.
So of course the supervisor didn't really think
that this was legitimate and charged him AWOL.
He ended up getting a five day suspension.
This case actually went to arbitration,
and the arbitrator ended up splitting it
and reducing the five day suspension
actually to a one day suspension,
but the person had only served three,
because one of the things we do in the FAA
is sometimes include weekends.
So he lost three days of pay
although it was a five day suspension,
and the arbitrator reduced it to one day,
and he based that on, he said,
he thought both sides had done something wrong.
The supervisor had not told the employee
that his leave was approved or not approved when he called in,
and also when he asked for the medical documentation,
it was given to him
and he told the individual it was unacceptable,
he didn't tell the employee what was acceptable.
He didn't tell him what he did need for him.
He just said, this is unacceptable
and you have five days to give me better documentation,
and the employee did not do so.
So the arbitrator ruled kind of that the...
the employer was somewhat at fault,
but he also ruled that the employee was somewhat at fault,
because it did appear
it was kind of a little bit lack of candor,
I think, is how he termed it
when the employee was seeking the additional two days off.
Rebecca, do you have one?
I do have... I do have a couple of stories,
but I think the most important one
that I would like to tell you about today is,
it involves the reasonableness of a denial of a request
for leave without pay,
because I think a lot of folks think that, wait a minute,
you blew through FMLA, you have no more accrued leave,
and now it's totally up to my discretion
as to whether or not I approve leave without pay,
but I think we need to pause and really look at all the MSPB
and court case law,
the body of case law on what does it take to deny,
to deny leave without pay.
There is a reasonableness standard that you have to meet.
And what that really needs to...
what you will need in those cases is to show
that the denial of leave without pay was reasonable
and that it was based upon the need of the agency.
So here we have a case.
This case went to MSPB and we're at the hearing.
It involved a female employee about 40-years-old,
single mom, never married, has given birth to a baby.
She requests two months of leave to have the baby
and to take care of him for a while,
and after that two months
she declines to return to work saying,
I'm not ready yet, don't feel like it,
I'm not coming back.
I'll let you know.
And the managers are like, no, two months is it,
you're coming back to work.
No, I think I'll need another month under FMLA or whatever.
So fine, it gets extended.
But after the fourth month went by,
she is still telling her managers, go pound sand,
I'll come back when I'm ready, this is my first baby,
my last baby, and I'm going to spend my time with my baby.
The managers demand her to return again.
The fifth and sixth months go by and she is telling them,
go pound sand, I'll come back when I'm ready.
And they tell her, no, you've got to come back now.
Written notices, verbal notices,
telling her, no, this major project that you work on,
because she was about GS-13 level,
this is your responsibility, it's hitting the skids,
things are being impacted, you must return.
So by all standards it looks like we've met the standard
for a reasonable denial of further leave without pay
and then charging AWOL
and then of course proposing removal for excessive AWOL.
So we said, let's see
if our evidence is going to support that,
so what do we do, we make sure we collect everything
that we've been advising the managers all along to do
in writing especially.
We have the documentation,
we have the supporting documentation,
we have the manager's statements,
and everything looks pretty ironclad,
you just cannot go out of work
and tell your supervisors
that I'll come back when I feel like it
and I'll let you know.
So the person was removed.
So we're feeling pretty darn good,
and we go to the hearing,
and at the hearing new evidence was submitted by the appellant,
by the mother,
and it actually was a memo from a very senior level official
in the SES to her managers,
this email message from an SES to the managers,
telling the managers, you know guys,
it's really not that important that we have the project done,
as a matter of fact,
I don't really care if it gets done at all,
don't worry about the project.
Now, that information was not shared
with the Employee Relations team,
it was withheld, okay,
when they thought all stones have been unturned,
we have our evidence in order.
The Judge at that hearing, right during the hearing,
looks at the agency's table and says,
somebody better settle fast.
And the moral of this story is,
the senior leader whose email showed up at the hearing saying,
no, the project really isn't necessary,
don't worry about getting it done guys, not a problem,
turned out to be, even though he was married,
he was the father of the love child.
So when you think you've got it all squared away,
and you've looked at case law
and you've checked and double checked,
you can always get double crossed.
So make sure
that when you think you've got all your evidence together
that you act, do that devil's advocate thing, okay,
and cross-examine your managers, okay.
Try to find
where is the velociraptor going to pop-up at and get you,
because he is hiding in the woods somewhere, okay.
So I would say that, that would really be
an important piece of advice for you.
But that one got me, yeah, yeah.
All very good... very good cautionary tales.
Do we have any questions on the...
from the Internet observers,
Cynthia?
-No. -Okay.
I thought I saw you writing, okay.
We had some questions in the audience prior
that we asked them to hold.
Yes, I will ask a question.
How soon should a manager seek assistance
from the Employee Relations staff,
and I say that because I've got managers that call sometimes
and they already have like 40 instances of AWOL
and they haven't done anything about it yet,
help?
I'll take that one.
Sure.
I mean, that instance, I would equate that
to asking for child support
when your child has turned 18; it's way too late.
I would say that when a supervisor first comes on board
and/or if they've been there and realize
that after today maybe they need to start a new leaf...
turn a new leaf, that they meet
with their Labor and Employee Relations team right away,
preemptively,
you know, I like the preemptive strike concept,
to learn about how to handle and manage leave.
For instance, my office,
we sponsor a Supervisory Loan Library, okay,
and we have all kinds of materials,
including books on managing leave, and we advertise those.
We want managers to know
how to manage these situations before they arise,
and we want to know the managers...
and so having a presentation,
somewhat like what Jason gave you today,
have that type of presentation with your managers
and make sure they know the basics.
I mean, leave management is so complicated.
And so I would say, definitely, way before issues come up,
the managers, especially new supervisors,
should become friends
with the Labor and Employee Relations staff
and understand what they're in for as supervisors.
Then I would say that at anytime
that you have a violation of any type of attendance policy
or when you have frequent unscheduled absences,
as soon as that occurs,
some documentation is in order,
even if an AWOL charge is not,
some documentation in writing to show,
here is the policy,
let me just make sure that you're aware of it,
and here is a condensed concise version of it, it's clear,
because again, your policies,
in order to uphold those policies and to enforce them,
your leave policies have to be clear and concise.
You can't give somebody a 40 page timekeeping manual and say,
here is the timekeeping manual.
Well, what's the clear and concise rule for calling in
or requesting leave and obtaining leave?
Number two, that rule has to be well-communicated.
So don't be afraid to repeat it over and over,
in writing, verbally during meetings.
And then thirdly,
the rule needs to be equitably applied to everyone
and then consistently enforced.
So consistent enforcement, I think,
is what I see the most problem with, people just...
supervisors do not enforce leave procedures,
and so they need to do that.
One of the first supervisory jobs
I had in Employee Relations,
I used to get payroll to run the quarterly reports
that people who are in leave without pay or AWOL
for that very reason,
because there are so many times when people have disappeared,
and sometimes it's the case of a new supervisor
who doesn't even know that, that person is supposed to be there.
In the Postal Service there was a lot of movement of supervisors
and we found that very helpful.
And then when we would follow up,
I mean sometimes it was legitimate, but probably,
you know, a good portion of the time it wasn't,
so it was kind of our way of monitoring some of that
and making sure that supervisors were getting
some of the assistance that they needed.
Also, I would greatly recommend
attendance control classes mandatory for all supervisors.
Why?
First of all, when I go out in the field
what I see is that inconsistency.
That is, we have the same problems.
That is, I don't know if it's for you,
but everywhere I've been attendance is
the number one issue that we discipline for;
getting people to work, getting people to work on time,
dealing with FMLA issues, dealing with prolonged absences.
And one of the things this training should include
are problem solving scenarios.
Like, how do you handle the person that comes in late
every single day?
How do you handle the employee that's been off of work
for over a year?
Or how do you handle employees
who refuse to turn in documentation?
And just going over those scenarios
and putting into place best practices,
best practices like new employee orientation,
including an attendance guide for those employees,
including the call-in procedure,
posting your attendance and policy,
posting your call-in policy.
And in addition,
having a collaborative effort
in your more difficult cases, that is,
when these people are gone for a long time,
are they injured?
Is it a reasonable accommodation issue?
Is it a discipline issue?
In other words, do you need your Employee Relations people,
your reasonable accommodation people,
your employees who deal with accidents,
you need all those heads together to come up with a plan
to deal with your most difficult employees.
But without education for your supervisors,
and I would do it on a yearly basis if we can,
it doesn't matter.
So you have to have the supervisory education
on attendance control,
have a good course,
use it, make them take it,
instead of some of the...
do we all have our courses we take electronically now
mandatory?
-Yes. -Okay.
Let's do something mandatory that counts,
what you say y'all?
Yes, Cynthia.
Okay. We have a question from a webcast viewer.
Is there a limit to how much AWOL an agency can charge
before you move to formal discipline? Rebecca.
Could you repeat that question,
is there a limit to how much you have to get, or is it a minimum,
-what is the question? -They may have meant minimum.
Okay. Is there a minimum of AWOL
that you need to have before you can actually charge them
with the disciplinary events of discipline?
Okay. Let's take that as the question.
I would say that the minimum...
I'm going to get really technical here,
technically speaking,
I would say that whatever your minimum charge is
for your agency, your organization,
or your bargaining unit members,
whatever that minimum is,
like some
agency is going to literally charge one minute AWOL,
some can charge in six minute increments,
I'd say whatever that minimum increment of AWOL is, to me
that is the minimum AWOL that you would need
to conceivably charge someone with AWOL
and then take disciplinary action.
So let's say if something critical occurred where
you had a start time in certain lines of work,
where it's critical that you have to start
at 8 o'clock sharp,
because there is a specific turnover or whatever,
and maybe one, three, five minutes late
really critically impacts something, okay.
And I think there are certain environments, maybe rare,
but certain environments where that is the case,
and I would certainly charge AWOL
and possibly think about discipline, but again,
all of those circumstances would have to warrant
discipline for that minor of an amount.
Also...
-I am sorry. -Go ahead.
-Cindy, I am sorry. -Go ahead, Randolph.
Also, with that question, MSPB,
when you look at the mitigating factors,
why they lessen the penalty,
most of the time it has been because
the short amount of AWOL, that is less than a day,
or the frequency of AWOL,
normally just one time,
and then you combine it with the other factors,
like the length of service,
their good service, and so forth,
we lose those cases,
especially when we take it at the removal level.
I don't know what your Table of Penalties are in your agency,
but you should look at that case law
on very short amounts of AWOL;
one hour, two hours, three hours,
and just the one or two times it happened,
and you may have... you may have three occasions
and it's still less than eight hours
that has been a problem.
And so if you are going to discipline for that amount,
you should be looking probably to do it at less than
the removal level.
And I think the key really is that
you can charge somebody AWOL
for a very small amount of time.
There has been numerous time I've charged people AWOL
for five minutes,
but I don't take disciplinary action
until there is additional... several instances of that,
because of the very reason that he is talking about.
So you may charge them AWOL,
but whether or not you're not going to make...
take discipline based on that AWOL
will depend on some other circumstances.
We have another question.
You have mentioned consistency in taking action,
other than that, what is the most common mistake
you find supervisors make with respect to AWOL?
I think the most common one I see is
thinking they've charged somebody AWOL
when they haven't actually documented...
they don't have any documentation indicating
that they disapproved the leave.
They just... they need to document
whenever you're charging someone AWOL,
and lack of documentation
is one of the main problems that we have.
I think one of the biggest mistakes too is that supervisors
will maybe disapprove a request for accrued leave
and charge the employee leave without pay,
believing that leave without pay is AWOL.
So for me, I'd say that's the most frequent.
I think another big mistake too is,
nowadays supervisor, managers looking at leave requests
as simple leave requests when they may be much more than that.
A leave request might be an FMLA request.
A leave request might be a reasonable accommodation
for a disability request and you don't know it,
and that's going to cost you.
A leave request might be to take care of elders
or other dependents who need care, especially if those
caregiver responsibilities are for disabled peopled,
and I think that when supervisors get involved in
deciding whether or not to
approve or disapprove leave requests for caregiver reasons,
they need to make sure they read the EEOC's guidance
on caregiver discrimination,
you know, it's really...
it's a disability discrimination by association with
taking care of disabled people.
You need to be extremely careful with that,
because you might be walking into a discrimination...
a discriminatory action by your leave approval decision.
So some supervisors
aren't even aware of those types of implications,
especially now when
the baby boomer generation is getting into a
lot of elder care issues,
you know, and they need to be aware of the EEO disability
by caregiver association
discrimination concepts that are out there.
And I would say that it's very dangerous
for supervisors to try to make leave approval decisions
for employees who need time off to care for,
you know, elders or others
who need caregiving responsibilities
without being aware of the EEOC guidance,
because even outside of FMLA protection,
we're talking about EEO discrimination cases,
the disability discrimination case.
So you've got disability discrimination to worry about
and approving or disapproving your leave
for certain caregiver responsibilities
of disabled people.
We then have, you know, any adjustment...
any request for an adjustment to your workplace
needs to be carefully examined
for whether or not that actually constitutes a request
for reasonable accommodation,
and whether or not that kicks off the agency's requirement
to engage in the interactive dialogue,
you know, the process for determining whether or not
a request for reasonable accommodation is being made.
And then thirdly, you've got to look at whether or not
the request and the information that you have gives rise
to an FMLA request and that,
you know, whether or not you have any obligation to treat it,
you know, as such.
So today it is... leave approval is just not a simple subject,
it's very complicated.
I agree with both of my panels here that those are problems.
Sloppiness is something I see quite a bit,
that is, not having all of our ducks lined up.
That is that the T&A says one thing,
the Excel spreadsheet you use to track it says another,
and what they actually have in the electronic system
may be something totally different,
so that the hours just not adding up.
And once you get to hearing,
once they find something wrong with one day,
then all of a sudden we're looking at all of your dates
and the case starts falling apart.
I agree with how we handle all of our employees.
We have our good employees we handle one way,
and employees we don't like another way,
and this is especially true
when you're charging an AWOL for coming in tardy.
And this inconsistency in treatment
comes back to bite us when they find out, wow,
Sue, Dave, and Bill
are doing the very same thing that
you're giving discipline to Jill for,
but you let them make up their lateness and this person,
because you don't like them,
you don't... you AWOL them.
A third thing that is just as important is the charging,
getting the charging right.
Many times we're going to try to charge them with misconduct
and then make a specification AWOL
and fail to follow instructions;
those charges don't work in every case,
especially when the employee can show that they are
legitimately ill.
So the misconduct charge will not work in that case.
Also, looking at everything,
for some reason we think we have ironclad AWOL charge,
but what about the rest of the things that they're doing?
When you're removing somebody,
everything goes into the pot, everything,
put it in,
so you have a good AWOL charge.
You don't what an AWOL charge is going.
If there are other things that they're not doing right,
and Jason alluded to that earlier,
putting that fail to follow instructions,
but what if they're not doing their work
and they have been poor at it,
all that needs to go in, everything counts,
and at that removal stage you need to put it all together.
That's it.
Rebecca or Cindy, do you also add additional charge
as failure to follow instructions or others like we
like Jason mentioned earlier?
Yeah, we do... we do that,
and one of the errors I see a lot
when charging someone with AWOL
is, they'll say like AWOL for five consecutive days
or AWOL for two weeks,
just use the simple charge AWOL
and then talk about the rest of it in your specs,
because what happens way too often
when you get in front of a judge
is maybe part of that time
the employee is able to convince the judge or the arbitrator
that it shouldn't be AWOL,
and then you've lost your charge
because you included the number of days in the AWOL
and you don't need to do that.
And the other thing is, when you're doing AWOL
and failure to follow leave requesting procedures,
it should be two separate charges, not one charge,
because if you have that written as one charge,
you have to prove both of those things,
where if you have it as two separate charges
and you only prevail on one,
you still have some discipline,
it will probably be mitigated,
but you'll still have something to
hopefully get some discipline on.
So just be cautious in your charge writing,
I think that's probably the biggest...
the two biggest mistakes I see with charge writing with AWOL.
I'm a purist, I like to keep my charges very tight,
very restricted, in fact,
pat them very clean as far as charging.
Where I throw in the kitchen sink
is in the Douglas Factor Analysis.
So I might do a Douglas Factor Analysis
that is six or seven pages,
where I see a lot of people doing one or two paragraphs,
I just don't understand that.
I like to just go full board on Douglas Factor Analysis
and that's where, as Randolph said,
that's where I'll throw in the kitchen sink,
everything you've ever done wrong,
every impact you've ever made negatively in the office,
I'm going to fit it inside those Douglas Factor somewhere,
and I'll cite every Douglas Factor and give, you know...
if I have a page or two worth for that Douglas Factor,
I'm going to give it in that notice.
I think I notice down...
so the longest proposal notice I ever wrote was 29 pages long.
And a lot of that was in the Douglas Factors,
and I'll tell you what, it was just beautiful
to hear what the judge was saying at the hearing,
it was just music to my ears,
and they just really seemed to like that.
So I think as long as you've got a charge,
if it's pretty pure and simple,
the fact pattern is crisp and it supports it,
load up the Douglas Factor Analysis
and that's where I put all my stuff.
Okay. And I have to add the
OPM commercial for Douglas Factors here.
At OPM we always use the term totality of the circumstances,
because remember, Douglas is not all-encompassing,
there are a lot of issues
that Douglas doesn't touch on,
so don't just stop with Douglas.
If there are other mitigating or aggravating factors,
include those in your analysis always.
Yeah, that's absolutely true.
We just always... you know, as a term of our...
we refer to Douglas,
but for those of you who may not have been doing this
as long as some of the folks on the panel,
remember, it's not an all-inclusive list,
so look at the whole story,
the totality of the circumstances
you're dealing with.
Do we have questions in the auditorium?
Yes. You may have touched on this already before I came in;
I apologize for being late,
and if you have I can just talk to you after panel,
I won't hold up your time, but
my question is about the appropriate charge to
leave or to AWOL with an employee that's incarcerated.
I'm not sure, should we charge that employee AWOL
during the time he is incarcerated
or approve leave if he requested leave,
I'm not sure what to do in that case?
Okay. I remember a case,
I remember two cases,
where we initially lost
indefinite emergency suspensions;
one was a drug dealer caught dead to right,
and what he did,
it was a work program that...
in the prison where they allowed them to
work during the day and be in jail at night,
and he requested it and we disapproved it.
And the judge came back and said,
you may be able...
that was a... there's a way this guy could work,
but you wouldn't let him work,
and he wanted to work, but you said no.
And so you know how that case went.
Okay.
Another case where we had a
postal worker shoot a boyfriend in the head,
and we had an emergency procedure,
we put the employee out on emergency procedure,
and we lost the emergency procedure
because this is arbitration where the arbitrator said, well,
you haven't... this person committed a crime,
it should have been... she had them on...
not on emergency,
but the provision for crime, indefinite suspension.
The person was in jail, so we lost that emergency case,
but the removal case came up and...
but we did everything right there and the difference was,
she had been charged and she admitted the crime,
so that most of the problems that occur
is when we charge them with a crime,
they win their case, we lose our case.
Okay. So we try to avoid those
where the employee is not found guilty.
And most of the time it takes too long,
and so it's easier to charge them AWOL
since they legitimately can't come to work.
Okay?
However, if the employee admits to the crime
and is sentenced very quickly,
you can do it the other way,
but the problem has been over and over and over again,
when charged with the crime and we lose the case in court,
our administrative case goes south also,
so we normally charge the employee AWOL
and there are some unique problems in that
and we'll talk about that later. Okay?
I think Jason talked about it kind of early on,
on one of the slides and we had a similar case
where we had an employee who called in for annual leave,
and after we found out he was incarcerated for two days,
we took away the annual and charged him AWOL.
And the union took that to arbitration
and the arbitrator basically said hey,
annual leave is for personal emergencies
and this was this person's personal emergency,
you approved it before you realized he was in jail,
so obviously you didn't need him at work,
and we lost that case.
So I think the key is really establishing that
you did need him at work
and you weren't going to approve annual leave either.
I think that there are
several agency polices out there that do say,
if an employee is incarcerated then you will not approve leave,
and I don't think that is consistent with
current Board law,
because Board law says you're not supposed to take the reason
for the request as the sole determining factor
in making your decision
as to whether or not to approve or disapprove leave.
Disapproval and approval of leave is always about
the agency need, you know, and the operation.
So I would say that
you really would have to look at both of that.
I mean, you know, jail is just an adult time out.
I don't look at it as something that, you know, is...
I mean, look at the Prisoner Rehabilitation Act of 1966
where the Federal Government as the benevolent employer
is supposed to hire, you know, reformed felons.
So okay, well, that's my spin,
but some good people go in and out of jail,
when we look at the tabloids I mean, Paris Hilton, come on,
she is not that bad, you know what I mean?
That's the way I look at it.
We have another question in the audience. Go ahead.
I'm wondering if the panelists have any experience with
a situation that involves mental ill...
documented mental illness.
We have a situation where the employee has
exhausted all paid leave and has been...
the supervisor has been approving leave without pay
to the tune of like 20-30 hours per pay period.
And this is a situation where the employee
would like to come to work, wants to come...
wants to work when she is there, her performance is fine,
but she has a mental illness
and has not requested a reasonable accommodation,
and we don't know that there is one,
but we're trying to sort of get the employee to see her doctor,
see if... this is sort of a...
there has been a pattern over the years,
this is not the worse that it's gotten,
but there have been times when the doctor
has been able to adjust her medications
and that has helped her be able to work.
But we've kind of gotten to a point
where in terms of the attendance,
you know, there is obviously a need for her to be at work
and we're contemplating leave restriction,
although we don't really
feel good about the leave restriction,
because we understand the circumstances,
so we're kind of running out of ideas.
I think you have a situation where, you know,
you're looking at a potential excessive absence removal.
If the excessive absences are...
there is no foreseeable end and the employee's absences,
excessive absences are a burden to the agency's operation,
you know, impacts the agency operation,
then I think that's the type of case you're looking at.
I think that you need to be careful
if employee's request a restricted schedule like that,
because, well, I can only work two days a week
or I need leave three days a week,
you're looking at that as a leave request
when that actually might be a
request to adjust my work schedule,
i.e., a reasonable accommodation request,
and you may not know it,
they don't need to use the magic words.
So people need to be really careful
on examining a request for leave
as perhaps a request for an adjustment
to the workplace due to a medical condition
which would equate to a
reasonable accommodation request, don't get caught,
you know, in not recognizing that.
I mean, that's a good point, and
this is a situation when she literally calls in everyday.
So it's not, you know, sort of planned,
she calls in everyday.
So we could sort of safely initiate
the reasonable accommodation
conversation without her just based on,
you know, her daily request saying,
it looks like you might need an accommodation.
Well, essentially, what she is...
she might be asking for or some people might view
she is asking for is just a fluid schedule, you know,
and so that may be unreasonable
and maybe your reasonable accommodation team
would look at that and say, yeah,
that's an unreasonable accommodation
and you'd make a case for that,
you know, before you move forward with the removals.
But I think it's important
where you take those medical conditions,
especially with the psychiatrist conditions,
make sure you review the EEOC's guidelines
on managing psychiatric conditions,
you know, in conjunction with any leave approval decisions
that you make,
in addition with all of the Board and Fed Circuit case law,
you know, on managing those types of leave requests
with those types of illness is really important.
Okay. Do we have any other questions in the audience?
I'd like to add to that.
Oh okay, sure, sorry.
Can we add?
FMLA,
many times it comes up
and either the person turned it in or not,
but once they've requested it,
you know, we have some affirmative responsibilities;
the WH-380 to give them,
the rules and regulations regarding FMLA,
and sometimes,
and I've seen it over and over again
in the mental illness category,
we don't do everything
that they will say one word one time and we'd just dismiss it.
But for some reason when we get in hearings,
the judges really... the judges and arbitrators,
they really help those who are...
they don't even have to be mentally ill,
they can just not be the brightest out there
and they will give them that help.
And so we do have obligations, we do have rules,
so let's make sure that part is covered.
But short of that,
you need to go ahead and get the notice of absence inquiry,
does anybody use those?
Notice of absence inquiry?
Where have you been?
You've been gone for a while.
Where have you been?
It's a nice process to get that letter out.
Where have you been?
You know, we need some medical information
from you as soon as possible, have it to us by this day,
and if you don't, we're going to charge you AWOL
and possibly take disciplinary action.
And then it doesn't come back.
And so then you go to that options letter.
Well, you know, we've sent you a notice of absence inquiry,
you haven't answered us,
now we'll like to give you some options,
since it seems like you're not coming back to work.
And you talk about reasonable accommodation,
here are the forms, turn in for that,
if that's what you need to come.
You talk about,
is there another job you can go to that you can actually do?
You talk about,
here is a form for resignation
if you believe that you can't do the job
and you want to do some other employment,
or let us know by this time,
and if you don't let us know by this time,
we'll turn in a form for you removal,
something for your removal.
And a process, that is what I recommend.
And also, if you have in your office a doctor,
some of these agencies can do fitness for duty,
some of you cannot.
But do you have that capacity?
Does anybody have that capacity here?
Okay. We've got some officers with that capacity.
Okay.
So look at those other options,
and this is the one... this is another one
where you have to get more people involved.
And you have to be careful,
because at anytime
you start calling this person mentally ill
or you even say it in your emails,
all this information is discoverable,
and EEO complaints can be filed based on
whether the person is truly mentally ill
or just your perception of them mentally ill.
So there is a need to be very, very careful
on how you handle these matters.
Yes, can we get a microphone down to the very front?
There we go.
Go ahead now.
Randolph, back to your earlier scenario
in regards to the employee who was incarcerated,
for clarification, did you say that you all charged him
initially with AWOL and then later on suspension?
Yeah, we charged her initially for the emergency suspension,
and the arbitrator said
that the case involved indefinite suspension measures,
because person committed a crime.
You have the procedures in your bargaining union agreement
for handling crime situations,
this wasn't an emergency situation,
it was a crime situation.
We vehemently disagreed but...
So you later then charged indefinite suspension
for the employee being incarcerated?
No, we lost that case,
and we later charged the person with straight up AWOL,
okay, and we won that case.
So arbitrator said you should initially charge
indefinite suspension?
That's correct.
Gotcha!
That is correct.
Because we had a similar situation,
it wasn't actually the employee who committed a crime,
but she was accomplice to a crime.
And we did the indefinite suspension
and she was later found guilty as well with the boyfriend
and she just arbitrarily quit.
What is your name?
Sandy.
Okay.
Sandy,
what I want you to do is look at your agency's regulations,
as well as if this employee has
collective bargaining unit agreement.
No, it was not a bargaining union employee.
Okay. Well, that's...
Because of her position.
Okay.
And then look at if your agency has in fact
emergency or indefinite suspension procedures,
not everyone does for some reason,
every agency differs,
okay, and I would examine those first.
But that's a completely different area
from the topic we're here to discuss AWOL,
so we really are prepared here today to discuss AWOL.
Not that that's not a great question and area,
but that is a really large area,
when you talk about the crime provisions
and indefinite suspensions,
you're getting into the procedures
for taking those actions.
So I'm sure we'd love to talk to you,
the panelists will talk to you off-line afterward.
Did we have some more AWOL questions?
Yes, I have one last question.
Earlier Randolph, you were talking about
how we treat employees that we like
as opposed to those we don't like in AWOL situations.
I want to ask you about a situation and how maybe you
or even the other panelists, if you want to jump in,
how you would handle this?
We have one employee that is constantly late,
two, three times a week, you know.
And then we have one that is never late, always on time.
So they both get stuck on a train for 45 minutes
and the employee that, let's say, the supervisor likes
comes in there and, oh, the train messed up,
no questions asked.
Now, he gives her administrative leave,
doesn't even charge her own leave.
And then the other employee comes in,
the one that's constantly late
and says, well, you know, I was stuck on the train this morning,
it wasn't my fault, you know.
He disapproves her leave, charges her AWOL.
Now, I do understand that,
you know, we take these leaves on a...
you know, leave approval, leave request
on a case-by-case basis.
But would you not consider this as a situation
where you would treat each instance differently?
You know, they both were in the same scenario,
both of them were stuck on the train,
but immediately the supervisor approved the other lady's leave,
you know, without any explanation or anything.
What would say about a situation like this?
I would say this, the EEO, its burden of proof,
at disparate treatment level is,
are the individuals similarly situated?
Now, in that case, they were similarly situated okay,
however, let's take it a little further.
Suppose John had already received a warning,
a 7-day suspension or 14-day suspension,
that lateness could have resulted in a removal for him,
whereas Jill, this is the first time she's been late
in her entire career,
it may not have even requested anymore than,
don't do that anymore, okay,
because if it continues
I'm going to have to take some type of action,
or even less than that.
So they're not similarly situated from that end.
But that day it can look differently,
it can look differently.
You may have a supervisor that says,
the first time or the first three times I give you a break,
but after the third time I'm not giving you a break.
And so if he cannot articulate clear business reasons
why he did one thing for one employee
and another for the other, okay, it may be a problem.
But on what you call prima facie,
yes, prima facilely, it looks like discrimination.
However, the supervisor may have
a different explanation for what happened.
Typically, in a situation like that though
I would probably advice the supervisor
to do the same thing for both.
And the one,
the problem employee that's been absent a lot,
they're going to still continue to be absent
and they're still going to get disciplined eventually anyway,
so that one absence isn't going to really change that fact.
Mike, can you get the microphone down front?
This question has something to do with
question that the other girl had about mental illness,
and I think Randolph gave a very good advice of offering FMLA,
however, I heard something else that you said,
offer a resignation?
Can we really do that even, you know...
because we're very, very careful about giving, you know,
this type of option to the employee?
Okay.
Under Title 2, Title 2 is different from Title 1 for FMLA.
Title 1... do we have any Title 1 employees here?
Okay. We should be all Title 2 then.
Okay. Title 1 requires management to ask.
We're Title 2, you don't have to ask,
the employees have to ask.
I think what I was trying to convey was that,
if they bring up FMLA,
we may have an affirmative responsibility,
go ahead and question them, are you asking for FMLA,
and if you are, here are the forms to complete your FMLA.
Okay.
What is the second part of your question?
[inaudible].
Okay. That was after another process.
That is, the employee is gone
and you believe that they have a mental illness.
Okay. So part of the process is finding out
where the employee is,
do they have the requisite medical information
that shows that they're unable or incapacitated to work,
you want that documentation.
And many times that information will give you
why they are incapacitated and so forth.
And that was that part of the process.
But if they don't respond to that part of the process,
then you go to an option letter
that has several options for the employee,
that's another process.
And you're not... you don't ever ask them to resign.
What you're asking them to do is, look,
you haven't responded to our inquiries,
this is what you need to do by this time,
these options here, one of these options.
And if you don't, we're going to take this action.
Sorry, I just want to make a clarification
with what you said about offer of resignation
versus which I believe you can really say is,
disability retirement if the mental illness is...
you know, there is no foreseeable end.
It's just, you know...
Okay. Here is what I think,
maybe you need to talk to me afterwards,
because I want to really go over what the process is.
At no time are you going to actually ask the person
to resign.
That the resignation will come up as a number of options
that the employee actually has,
not just resignation.
We would never just send an employee a letter saying,
you need to resign.
And I don't want you to think that
that's what I was trying to convey, I was not, okay?
So can we talk afterwards?
[inaudible]
Okay.
All right!
Okay. We've got just a few minutes left,
so I would like to wrap up
with one final quick question for the panelists.
What is the single most important piece of advice
that you would like to share with
practitioners that have come by to OPM and tuned in today?
Rebecca?
My most single piece of advice is to
study leave administration and leave management,
because it's become very complicated.
Never believe, even if you've got years and years of service,
that you've kept up with everything,
because sure enough there will be a decision out there
or EEOC guidance or an FMLA change,
you know, to how many days you submit medical,
you know, documentation, etcetera,
there's going to be some change somewhere.
So I would say, you know, phone a friend,
ask the audience, but don't think...
don't work in a vacuum.
Thank you.
And I think that's great advice, and
I guess something that I kind of alluded to earlier,
just like any ER issue; document, document, document.
And if you're charging somebody with AWOL,
make sure you have documentation
that supports that AWOL charge.
Randolph.
My recommendation is good training.
Good training resolves a lot of problems.
And it will get you more confidence
in handling these attendance problems.
Get the good training.
There is plenty out there.
And I would also say one more thing,
electronic tracking,
has anybody AWOL somebody, even removed them
based on this new electronic tracking that we have, anybody?
We have a building out in Riverdale, Maryland for APHIS,
the Animal and Plant Health Inspection Service,
and when you come into the parking lot,
you hit your card in, it records it.
When you come into the building, it records it.
When you go into an elevator, it records it.
When you go into your office it, records it.
When you turn on your computer with your card,
it records it.
And just last summer removed a secretary,
my secretary, will you believe that,
over training,
sent her to training for a week,
and they sent me back something saying that,
that last day they cancelled,
but she didn't come into work,
which, you know...
and when I asked her about it,
she said, well, you know, I just took half day.
Okay, and so I just asked for the tracking information.
And my God, for 40 hours, she only took 11,
of all those 40 hours, it was two days she didn't come at all.
Okay.
So what I would say is that
there is a lot more information out there
now about our employees.
Use all the information that's available to you
and let's start thinking out of the box.
Thank you.
Thank you. And I will now turn the podium over to Ken Bates.
Okay. We're almost done here.
I just want to thank all of our panelists.
I've been in the business a long time, there is nothing,
really nothing, I enjoy better than
listening to real world ER stories,
and they certainly have delivered
several of those today,
as well as excellent advice
and counsel reflecting their extensive real world experience.
I also want to thank Lisa and Jason
for their overview at the start;
well-organized and hitting the key points.
I also want to thank the staff from the Office of...
OPM's Office of Liaison...
Public Communications & Public Liaison
for making it possible for us to send this session out
through the web.
And thank other OPM staff, particularly from CWRAP,
who have handed the microphones,
fielded questions off the Internet,
and helped organize and help us make this possible.
I want to make sure that we,
again, repeat what I said earlier,
please let us know how we're doing.
Give us feedback via the evaluation forms.
If you're watching over the web,
collect those together, fax them into us.
We read them very carefully.
They... if you have suggestions for other topics,
if you have suggestions
for how we could make these more useful for these...
for you, we're doing them to try to help you in your...
doing your job and I think we're hitting the mark.
You've obviously presented a lot of good questions,
but we want to do better,
and we can only do that if we hear from you.
So let us hear from you, and I think that's it.
Remember, if you're here in the auditorium,
we have escorts who can get you out of the building,
you'll need to be escorted out of the building,
and that's all there is.
Thank you very much.