As a supervisor, your role in managing employees’ leave comes into play when employees fail to follow procedures for requesting leave or when a request must be denied because the employee’s absence would disrupt the productivity of your department.
When dealing with disciplinary issues related to leave, the most common violation I see is the employee’s failure to request leave in advance and in accordance with agency procedure. Grievances or equal employment opportunity claims might also be filed when an employee perceives his request is handled differently from other employees’ requests for leave.
When an employee contests an action, a supervisor’s best defense is a record of consistency in managing leave requests. It’s when managers demonstrate leniency and inconsistency that they open themselves to liability.
The approach that most managers take is that emergencies do happen, such as illness or a death in the family, and that leave requests should be accommodated. But if you find yourself being more lenient with some employees, be prepared to justify your reasoning, whether it is based on an employee’s past performance or better attendance record. The inability to document and justify differential treatment could lead to successful grievances or EEO claims.
One reason for initiating adverse action against an employee is absence without leave (AWOL). Any absence from work that is not approved, or for which the request has previously been denied, is considered AWOL time. AWOL charges are taken seriously, can progress quickly, and even result in employee removal. The Merit Systems Protection Board (MSPB) has found that when AWOL employees are disciplined, workplace efficiency among other employees rises.
If an employee files a grievance following a disciplinary action resulting from a charge of AWOL, the employee has the burden of proof in showing that the absence was authorized by either management approval or law. Still, managers should ensure the disciplinary action is justified and documented.
A recent Education Department case before MSPB illustrates the importance of documentation:
Janice Stribling was transferred from her position in the department’s Philadelphia office to Washington. After the move, she contacted her supervisor to claim a medical emergency and request leave without pay, which was granted on the condition that Stribling furnish medical documentation to back up the request.
After failing to provide the documentation and being given a specific date to return to work by her supervisor, Stribling did not show up at the new office until three weeks after the determined date and made no effort to contact her supervisor to request further leave.
Given Stribling’s failure to report to work, the department removed her on AWOL charges and several other offenses. Stribling contested the action, claiming disability discrimination and retaliation.
MSPB affirmed her removal in August, stating that the agency had acted properly and that Stribling could not prove the disability discrimination or retaliation claims. In February, the Federal Circuit Court of Appeals declined to overturn MSPB’s decision, stating that the board’s findings were appropriate. Management’s documentation of Stribling’s failure to return to work on the predetermined date, her knowledge of this date, and her inability to confirm medical complications provided the department with the backup it needed to justify the actions.
Not all cases will be as clear-cut as Stribling’s. Particularly under sick leave or Family and Medical Leave Act provisions, employees may have the legal right to leave even if they fail to properly follow request procedures. Managers should investigate and address any questions regarding an employee’s right to leave with human resources officials before alleging wrongdoing or taking disciplinary action.
— Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.
