By Deborah Hopkins, September 19, 2018

Oh, leave. It’s a topic that intersects with everything we do here at FELTG: conduct, performance, EEO, union issues, supervisor skills, and on and on. If you get it right, it’s easy; getting it wrong can cause big problems, legal and otherwise. So what I’ve done for you today is compile some of the more common leave “mistakes” that supervisors and advisors make when dealing with employee leave issues.

But, first things first. Let’s set out a few ground rules. Employee leave entitlements depend on the category of leave involved and can be inconsistent and confusing. Only certain types of leave are an entitlement; others are discretionary. Federal employees have significant rights, but in the discretionary areas (usually annual leave and leave without pay) the supervisor’s judgment about the need for work may be a determining factor on whether the supervisor approves the leave request.

Speaking of leave requests, employees DO NOT place themselves on leave. There is a three-step procedure that MUST be followed according to the law, yet many supervisors don’t enforce it. Ready for it?

  1. Employee requests leave
  2. Supervisor considers request
  3. Supervisor grants or denies request

And that’s it. So, onto the mistakes.

Mistake: Not checking local policy when considering leave requests. While certain areas of leave are discretionary under federal law, agency leave policies may provide more specificity. For example, there is not entitlement to annual leave (even though it is accrued) or LWOP (except for a few circumstances), but your agency’s policy or collective bargaining agreement (CBA) might dictate how those requests should be handled. Always check local policy if you’re not sure. Your L/ER folks or OGC should know those details by heart.

Mistake: Denying leave that’s an entitlement. Some categories of leave are an entitlement IF the employee meets the requirements. This means you have to say yes to a leave request even if it inconveniences the agency to do so. For example, let’s say an employee requests sick leave because his grandmother died, and he has to attend the funeral. That’s an entitlement. The employee gets the sick leave for the reasonable time they need to attend the funeral. Another example: An employee requests 12 weeks (480 hours) of FMLA to have cancer treatment. Even if it’s the end of the fiscal year, your office is crazy busy, and you don’t allow people to take vacations during that quarter, you have to approve the FMLA because it’s an entitlement.

Mistake: Not allowing the employee to choose his pay status during FMLA. A lot of supervisors miss this one, but the employee who is on FMLA gets to decide if the time off will be recorded as sick leave, annual leave, or LWOP. That means an employee can use LWOP during FMLA and keep all his annual leave and sick leave and save it for a rainy day. And there’s not a darn thing you can do about it.

Mistake: Putting an employee on LWOP without the employee’s consent. If a supervisor unilaterally places an employee on LWOP, although the employee did not request it, the supervisor has improperly suspended the employee without adverse action procedures. On appeal, the employee would be entitled to back pay for that period of time he was carried on LWOP without his consent. See Martin v. USPS, 2016 MSPB 16. The authorization of LWOP is a matter of administrative discretion and employees may not demand that they be granted LWOP as a matter of right, Desiderio v. Navy, 4 MSPB 171, 4 MSPR 84 (1980), but the supervisor may not place the employee on LWOP status without the employee’s consent.

Mistake: Letting employees abuse the Voluntary Leave Transfer Program (VLTP). Agency VLTPs are generally for short-term medical emergencies, to get an employee through a difficult time. If a supervisor allows VLTP for medical non-emergencies, it denies the benefit to employees who truly need the leave. Be aware, though, that normal maternity situations meet medical emergency criteria. Therefore, pregnant employees will qualify for VLTP even if there is not a medical emergency related to the pregnancy. Once an employee is approved for the VLTP, though, donated leave use is not an entitlement even if it is for medical reasons; it is still  subject to the same approval/disapproval  procedures as is annual leave. See Jones v. DoT, 295 F.3d 1298 (Fed. Cir., 2002).

I have more, but that should do it for today. Go forth and be wise in granting or denying leave requests – and remember, supervisors, in most cases, it’s up to you. Hopkins@FELTG.com

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