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>> it gives me great pleasure to welcome youto today's round table entitled, "understanding leave options in the federal workplace andmisconduct implications." today's presentation will provide expert knowledgeon the topic of federal leave systems and how to address conduct issues that can arisewith respect to time and attendance issues and leave abuse. we encourage everyone to make the most ofthe round table including asking questions of our presenters. you may do so by sending an email to employeeaccountability at opm.gov. we will do our best to field as many questionsas possible.

brenda will take her questions at the endof her remarks and melanie will take questions throughout her remarks. please note that shortly following the presentation,everyone who registered will receive a hyperlink to an online evaluation form, courtesy ofsurveymonkey.com. simply click the link, follow the instructions,and your valuable instant feedback will be sent back to us. your feedback is important to us and helpsus plan future round tables. for this significant topic of understandingleave options in the federal workplace and misconduct implications, we are delightedto have as our presenters today brenda roberts

and melanie jones. brenda roberts is the deputy associate directorfor pay and leave, employee services. she was appointed to the senior executiveservice in october 2014. brenda has more than 30 years of federal humanresources experience in compensation-related areas. she is responsible for the overall administrationof laws, regulations, and policies related to pay, leave, premium pay, and hours of workfor approximately 2.1 million federal civilian employees worldwide. melanie jones is a senior attorney with theus department of justice, justice management

division, office of labor and employment law. melanie's office is responsible for providingguidance to department components on labor and employee relations and overseeing thedepartment's labor and employee relations program. melanie joined the department of justice afterserving as a staff attorney in the us office of general counsel, employment and labor lawdivision at the us department of commerce for 10 years. we are delighted to have brenda and melanieas our presenters today, to share their expertise in this vital area.

please join me in welcoming brenda robertsand melanie jones. >> thank you, cynthia. as cynthia said, my name is brenda roberts. i'm the deputy associate director for payand leave. my office is responsible for pay, leave, workschedules, and we do the government-wide policy. the leave objectives with--that we have todayor my part of the presentation will be covering the overview of the federal leave system withthe focus on leave for medical purposes. we're going to cover the roles and responsibilitiesof congress president, opm and the agencies, managers and employees' rights and responsibilities,knowledge of differences between entitlements

versus flexibilities, specific medical documentation. and we also have a variety of resources thatare available for you. i have a lot of slides that are in this slidedeck and i apologize in advance because i'm going to be moving very quickly through them. but i wanted you to have them as a resourcethat you would be able to use in the future. so next slide, i wanted to talk to you a littlebit about the positive impacts of the leave program. you can read here the agencies and the employees'positive impacts. basically for agencies, it's a wonderful recruitmentretention tool.

we have a very good leave system, it's verygenerous. for employees, it's a wonderful work lifebalance issue in the evs scores, employee viewpoint survey is always ranged in the 80sas far as employee satisfaction. in fact, it was so successful that they tookit out of the actual evs statistics. next, i'd like to cover the roles and responsibilities. congress of course enacts the laws on leave[inaudible] in title 5 of us code. the president will occasionally issue executiveorders or presidential memoranda on discretionary leave programs. a lot of these are leave without pay or excusedabsence.

opm will take these laws where we're giventhe authority and regulate. there are actual leave laws that did not provideopm with regulatory authority. some of them would be like military leaveand excused absence. typically, we issue guidance on any executiveorder that the president would issue or memoranda and then we delegate it down to the agencies. agencies are responsible for the administrationof leave, always have been. they must be consistent with law regulation. they must consider collective bargaining agreementsas they go through. and as far as entitlement versus discretionaryprograms, it probably seems obvious but when

you have a lot and they're referring to willand shall, that you usually indicates an entitlement. basically, entitlements would be examplesof fmla or sick leave. annual leave is an entitlement, but it hasa discretionary component to it. as far as discretionary, a lot of the lawswill have and may in the actual law, that's usually how you can indicate that there'ssome flexibility surrounding the leave. many of the discretionary programs are advancedannual leave, sick leave, creditable service for when you have a new hire. as mentioned before with the discretionaryentitlements, the annual leave is an entitlement. but the scheduling of annual leave, that'swhere you have some discretion.

it's always the right of the employee to requestthe annual leave subject to the right of the supervisor to actually approve the leave. and as far as fmla, annual leave can be deniedif it's outside of fmla. you put it into the family medical leave actwhich is the fmla. and then it becomes an entitlement and theagency would have to grant it. i would like to show you a little of the federalleave system programs and policies. i'm--do not plan on covering all of theseleave entitlements, leave flexibilities today. i just wanted to provide you a little bitof the history behind it. leave is as old as--i believe the first lawwas enacted in 1893.

it was an annual leave law. it wasn't until the 1980s though that theytook it outside of the annual leave and sick leave and decided to provide additional flexibilitiesto employees. in 1987, they introduced the federal leavesharing program which was a pilot program at the--at that time. in 1993, they took this program and made ita perfect--a permanent program. fmla was enacted in 1993 which provided jobprotection. you also have executive orders such as theexecutive order provided by president bush, to provide five days of excused absence toreturning re-service.

also the ndaa for 2008 and 2010 provided fmlaentitlements to covered service members, so that just provides you a brief history. today, what we'd like to focus on is leaveused for medical purposes. it's basically annual leaves, sick leave,fmla, leave transfer, leave bank programs. we're all familiar with annual leave. you use this for vacation, you use it foremergencies that may happen if your car breaks down or for personal business. the annual leave accrues thirteen days forsomeone with zero to three years of service, twenty days for someone with three to fifteenyears of service, and twenty-six days for

fifteen or more year service. ses senior leaders, scientific technical positions,they start out at eight hours of annual leave which was something that wasn't--that waspassed not too long ago. the approval of annual leave, i think we discussedthis a little bit already. it's the right to request leave. the employee has the entitlement to requestleave subject to the right of the supervisor to approve leave. advanced leave. advanced leave is always discretionary.

however, president obama issued a memorandaon january 15th, 2015 on modernizing federal leave policies for childbirth, adoption, fostercare to recruit and retain talent and improve productivity. in this memoranda, president obama provided--hewanted to ensure that employees were provided some type of paid leave. so he was strongly encouraging agencies toprovide advanced annual leave and advanced sick leave for this purpose including theuse of intermittent fmla. so they basically wanted to ensure that everybodyhad a form of paid leave for childbirth, adoption, foster care.

now, it's not always in the employee's favorto have this leave advanced to them because they have to pay it back. so basically, the employee should be counseledto let them know that if they are advancing the leave and for advancement of annual leavepurposes, it would be the amount of annual leave they have in the remainder of the leaveyear to let them know that they have to pay this leave back. so they would have to refund it or if theyseparate, they would have to pay it out of, say, a lump sum payment for annual leave atthe end if they had it or pay that was actually due to them.

the only exception would be if the employeedies, retires on disability, or separates as a result of that disability. next, i'd like to cover sick leave. sick leave, you accrue it. it's four hours of biweekly pay period. for a part-time employee, it's one hour forevery twenty hours that they work uncommon tours of duty, it's prorated. sick leave doesn't have a maximum carryover,so you could keep accruing and accumulating your sick leave.

no limitation. types of sick leave that are--that we havethat i would like to talk about is for personal needs, for family care and bereavement, careof a family member with a serious health condition and adoption-related purposes. to cover the first, it's for your personalneeds. i think everybody's familiar with the sickleave for that purpose. it's--you don't feel good and you have tocall in sick that day. you have a routine doctor's appointment. it's for items such as that.

now, when we get in to the family member,the family member, this is the definition that's used for sick leave purposes and forvoluntary leave transfer purposes. it's a very, very broad definition that coversyour spouses, the parents thereof, son and daughter's parents, brothers, sisters, grandparents,this definition was just changed actually in 2010 to clarify that domestic partnerswere included and also grandparents and grandchildren. prior to that time, there is a clause thatis the last bullet in the slide that says any individual related by blood or affinitywhose close association with the employee is equivalent to a family relationship. this is basically how our domestic partnerswere covered before and our grandparents and

grandchildren, but president obama wantedto make clear that these people were covered under the definition of family members, sowe changed the regulations to include this. still, the last bullet, agencies are--theyuse that last bullet to cover, say, aunts that raise you or cousins or anyone that isnot specifically referenced in that definition but whose close association with the employeeis equivalent to that of a family relationship. thirteen days of sick leave, this is for routinecare of your family member. this was something that was actually introducedin 1994. prior to 1994, you were only able to use actuallysick leave for your own purposes. we didn't have family members included in.

so in 1994, they provided this 13 days. this is also used for bereavement purposes. so for funerals, this is the type of leavethat you would be using. for funeral leave, this would basically covermaking arrangements for the funeral, attending the funeral, necessarily--necessary travelfor the funeral, any gatherings that you would have, the reading and the will. however, any estate sales or cleaning in thehouse, anything of that sort would be more appropriate to use annual leave or leave withoutpay. sick leave to care for a family member witha serious health condition, that was also

changed in 1994. you're allowed to use 12 administrative workweeks of your unaccumulated sick leave for a serious health condition. serious health condition is defined, you dohave to read the definition of serious health condition very closely though. it's not necessarily always what you think. so it not only covers an employee who hasa medical condition, a serious medical condition like cancer or something of that sort butit also includes incapacity due to pregnancy and childbirth or for prenatal care.

one of the questions that we get is can youuse sick leave for morning sickness? that is something that an employee can usefor a serious health condition. sick leave for adoption. adoption, this was put in in 1996 and thegoal of this was to put them on equal footing basically with biological parents. there's no limitation to the amount of sickleave that you can use but it has to be for purposes necessary for the adoption to proceed. so this would include appointments with adoptionagencies, court proceedings, required travel. in some instances, it may also be for thebonding period after, but only if the courts

say that this must take place for the adoptionto proceed. we've been told that in china, they typicallyrequire the parents to spend a full month bonding with the parents in order to preventsomething called attachment disorder. so that month would be covered under the sickleave for adoptions. advanced sick leave, the next two slides willbe dealing with advancement of sick leave whether you can use two hundred and fortyhours which would be more for your serious health conditions. that's the maximum that can be advanced orthe next slide will be dealing with a hundred and four hours and that would be for yourmore routine appointments and medical care.

and again, under president obama's memorandum,he strongly encourages agencies to advance the sick leave for child--or for pregnancychildbirth and adoption. again, employees should be counseled beforethey use the advanced sick leave because they do need to pay the leave back. the only exceptions similar to the advancedannual leave is if the employee dies, retires on disability, or separates as a result ofthat disability. this is the summary basically of the sickleave limitations for the different purposes. it's unlimited for your personal use and foradoption. adoption has to be related for the adoptionto be processed.

general family care, hundred and four hours,care for a family member with a serious health condition, twelve weeks or four hundred andeighty hours. and then the advancement could be 13 daysor 240 hours based upon what it's being used for. okay. requesting sick leave, requesting sick leavecan be done in different ways. we used to require what they called a standardform 71, that's no longer required. opm switched it years ago to make it an optionalform, so agencies have different ways of actually having their employee's request leave.

it could be an email, it could be placingit on a calendar that they have developed, it could be for a number of things. administratively acceptable evidence, thisis determined by--determined by an agency. it may require three days and anything inexcess of three days however they could actually do this for shorter periods of time. medical deadlines. an employee must provide administrativelyacceptable evidence for medical certification within 15 days. however, if the above is not practicable despitethe employee's diligent and good faith efforts

is what we always refer to, they must be providedwith time but no later than 30 days. the next type of leave i'd like to cover veryquickly is the family and medical leave act. department of labor and opm were given theauthority to regulate fmla. department of labor, they cover the privatesector, state and local governments and some small federal agencies. opm, we administer title ii of the fmla andit covers most--majority of the federal employees. fmla is basically 12 weeks of unpaid leaveduring a 12-month period and it's being used for the following categories, basically birth,placement of son or daughter for adoption, care of a spouse's son, daughter, serioushealth condition of the employee or qualifying

exigency. if you will notice, family and medical leaveis used for family and medical purposes. so its staff always states is it's not onlyfor medical reason, it's also for the birth or adoption of a child and for qualifyingexigencies related to the military. family definitions, you'll notice that underfmla, the definition of family member is much narrower than the definition that we talkedabout for sick leave and for voluntary leave--voluntary leave transfer. it's basically the spouse which could be oppositeor same sex, son or daughter or parent. actually, in 2000--april 8, 2015, we changedour regulations for--based on defense of marriage

act to basically clarify that spouse couldbe used for same sex domestic partners when they are married, but you have to be marriedin order to be able to use it for your spouse. the next definitions are basically coveringwhat the definition of a son or daughter. if you look in the previous slide, a son ora daughter is anyone under the age of 18 or 18 years or older and incapable of self-carebecause of a mental or physical disability. the following two slides will provide youadditional information on what that encompasses and i'm just going to flip through very briefly. now, this is what a serious health conditiondoes not include. so it's your physical eye exams, conditionsrequiring over-the-counter medicines, cosmetic

surgery, employee's absence because of illegalsubstance, but that doesn't cover somebody who has to be in rehabilitation, that of coursewould be covered. common cold flu. requesting leave under fmla, it's very importantbecause this is different than department of labor. but employee must invoke fmla to use fmla. you cannot invoke fmla for the employee. and generally, fmla may not be invoked retroactively. notice of foreseeable need.

you would, in the best of all circumstances,want the employee to provide 30 days calendar notice of the need to take leave. say, if it was for child birth or adoptioneven, sometimes that's not always practicable and in those cases, it will most likely beless than 30 days, can't control some things. when it is unforeseeable, basically, you provideit as soon as you can. under no conditions though should you be denyingthe employee's leave if your--if they need to go. for example, we have received complaints where,say, your father has a terminal illness and you need to go to your father, but you'rewaiting for a medical documentation or something

of that sort, that shouldn't be. you should be letting the employee go on provisionalleave. you can worry about the medical certificationand sorting all that out afterwards. fmla is an entitlement and the employee shouldbe able to take care of their own. intermittent or reduced schedule. basically, intermittent is used a lot witha serious health condition. basically, you need to go to the doctor'sappointments when you need to go to the doctor's appointments. where it became in--came into question iswhen you're dealing with the intermittent

or reduced schedules because of the birthor adoption of a child. that was discretionary for a long time. however, again, with the january 15th memothat president obama put out, he is strongly encouraging the use of fmla on an intermittentbasis for that purpose. the next slide gets into the protection ofemployment. upon completion of the fmla, the employeemust be restored to the same position or equivalent position with equivalent benefits. employees may file a grievance if the agencydoes not comply with the fmla rights and employee's request for fmla leave does not prevent anagency from taking the appropriate adverse

actions or performance-based actions. melanie may be talking about that a littlebit later. and if an employee on fmla is not immune fromthe impact of rift situation during or after the fmla leave. so those are important points to make. with fmla grievances, it is important to knowthat congress did not provide opm with an oversight authority on this. this is all done through agency internal procedures,either through a collective bargaining or your agency policies.

department of labor was given the authority. opm was not given the authority under a law. next, i would like to go through medical certificationprocess for a lot of this is basically talking about what you need for medical certification. the first slide is for, basically, the employee. second slide is for care of the family memberand what is needed for medical certification and what is needed on an intermittent basis. i'm not going to read through these slidesfor you. but if you have questions, you can ask later.

then i'd like to go to the medical restrictions. one thing that's important on that is if theform is incomplete, the manager or the employee can go back and ask the employee to have thehealthcare provider complete it. if anything is unclear and they need clarification,you have to get the healthcare provider that's employed by your agency under an administrativeoversight to actually contact the health provider. but under no circumstances should a manageror your hr representative actually contact the health provider. it has to be done through that medical person. if you have questionable medical certification,if you're questioning the original certification,

the agency can always request a second opinion. it's paid out at the agency's expense. if the original and the second opinion varydrastically, then you can ask for a third opinion. it--again, it's at the agency's expense andthe third provider is picked by someone who is mutually acceptable to both parties. if the medical treatment must begin immediatelyand the agency is still questioning the validity, the fmla is given on a provisional basis. re-certifications.

re-certifications may be done, but your--butno more than every 30 days except for the following conditions, if the employee requestsan extended period of time. secondly, if the circumstances described inthe original medical certification is changed. for example, if you have someone who has migrainesand they've applied for fmla on--through that and they end up with a brain tumor, then thatwould be a reason for a re-certification. or the third one, the agency receives informationwhich casts doubt on the continuing validity of the--of the medical certification. this would be someone who, say, has a verybad back condition but someone sees him outside and he's building a deck, that would be somethingthat you could go for re-certification.

medical deadlines and certification is thesame as the sick leave. it's 15 calendar days and 30 days if--despitethe employee's diligent and good faith efforts there, not able to do it within 15 days. leave sharing is the last program that i wouldlike to cover. i'm going to flip through here very quicklybecause i'm running out of time. your voluntary leave transfer program, yourvoluntary leave banks are basically your donated your voluntary leave transfer program is requiredfor an agency to have but not every agency has a leave bank program because it's discretionary. for available paid leave, an employee hasto exhaust his or her own available paid leave

in order to qualify for a voluntary leavetransfer program. they have to be in a leave without pay statusor assume to have been in--or going to be in a leave without pay status for 24 hoursin order to qualify for the voluntary leave transfer program. so basically, they have to have a medicalemergency which is defined here. they have to have a threshold for a substantialloss of income which is 24 hours and they have to meet the definition of family memberwhich is the same definition that's used in the sick leave program. so they have to exhaust their available paidleave.

this doesn't count if you have advanced leaveor other forms of paid time-off such as credit hours, comp. time-off, religious comp. time. donated leave may be used for the same reasonsas annual leave and it's approved for the same purposes, termination of the medicalemergency which qualifies you for the donated leave. this is basically that the agency needs tobe monitoring the employee throughout the process to make sure that they still qualifyfor the medical emergency. and the termination of a medical emergency. this is always a hard one.

you may have some people that qualify forvoluntary leave transfer program that will get in to the program but really, they willnever be back to work for--because of their medical condition or--basically because oftheir medical condition. basically, this is not a substitution forleaving them on leave for long, long periods of time. so usually, in those cases, what ends up happeningis the employee will end up going out on disability retirement. and sometimes, agencies will need to councilthe employee's family members on this issue, so that's going through very quickly.

interaction of annual leave and fmla. basically, this is what we talked about before. annual leave can always be turned down unlessit's under fmla. if an employee invokes fmla, they can substitutein your sick leave. if they substitute annual leave in the fmlaperiod, the agency has to grant it. interaction of sick leave with fmla. sick leave and fmla, they are very distinctentitlements. you can use sick leave without invoking fmla. so usually, if you're wanting to help an employeewith a serious health condition, what you

would advise them to do is provide the--letthem use their sick leave because they have an entitlement on their own and then let theminvoke fmla, that provides them with job protection for a longer period of time. the next slides are giving a comparison ofthe sick leave program with the fmla program. it's there for your use. this one is talking about the definition offamily member. and then the second slide is talking aboutthe similarities between the sick leave, voluntary leave transfer, and the fmla system. the last thing i'd like to cover is leavewithout pay which is basically a discretionary

authority. it's granted at the supervisor's discretionexcept in the following instances where it is an entitlement that's under fmla. once the employee invokes fmla, that becomesan entitlement for a 12-week period under the uniform services. there is a provision under userra for leavewithout pay. there's also a provision, this one is an executiveorder for disabled veterans who need necessary medical treatment for a service-connecteddisability which they are allowed to have leave without pay for that purpose.

and the last is for workers' compensationunder department of labor that they're granted leave without pay. so that covers my portion and i'd like toturn it over to melanie. >> okay. thank you. >> brenda, would you entertain a couple ofquestions? >> oh, i'm sorry. yes. sure.

>> the first question, are there any exceptionsto the rule that fmla may not be invoke retroactively? >> yes, there are exceptions to that ruleand i'm going to have to get back to you on what they are. that would--that would be something that iassume that we could sent out to everyone. >> absolutely. we will definitely. >> after the fact >> send that out. >> i am actually filling in for my main staffmember who is actually on sick leave today.

she just had surgery and she knows more ofthe specifics on that, so we will be happy to get back with you. is there any other questions? >> all right. so, let's talk--brenda has given us a lotto think about with regard to leave flexibilities and leave rules and leave regulations, soi'd like to spend a few minutes talking about what happens in the real world when thingsdon't go exactly as planned and managers and supervisors have to manage these flexibilitieswith regard to their employees. so just a brief overview of the module objectives.

we're going to talk about methods by whichto establish expectations regarding leave. we're going to talk about methods by whichto identify leave-related misconduct and we're going to identify and explain tools with whichto correct leave-related misconduct. all right. so just in general, and i'll go through eachof these in a little bit more detail, so if you're a supervisor, what are you going todo? what are you--what are the first few thingsthat you think about when managing in leave context? first thing is going to be make expectationsclear to your employees.

we're going to discuss how to be consistentin your application of rules and regulations. we're going to talk a little bit about documentationand we're going to discuss identifying potential concerns promptly and taking corrective actionpromptly. sorry. so let's talk about establishing expectationswhich is another way of saying giving notice or telling your employees what to expect. and what i'd like to tell my managers andtell my supervisors is every good outcome really begins with you telling your employeeswhat's expected. we want to start at least in any relationshipwhich is the same with the employment relationship

with the expectation and the hope that employeeswant to do what's expected. they want to do what we want them to do. and in order for them to accomplish that,we have to tell them what our expectations are and that is the same with regard to leaveas it is with regard to other types of conduct. so how do you tell your employees what toexpect? there are a number of different ways. you can post and/or announce regulations andprocedures and how do you post? well, one way, if you're in a unionized environmentis in the collective bargaining agreement and i would strongly recommend if you're anew supervisor or a new manager or even one

who's been there for a while that if you'rethinking about leave and how to address leave, you refer first to your cba. that will have very detailed explanationsof how employees are to request leave, when it can be denied, separating apart or in additionto some of the regulations that brenda has already discussed. if you're not in a unionized environment orif you're in a mixed environment, the website is an excellent way to put general expectations. frequently, agencies will put their leaveorders on the website so employees can avail themselves of the rules, they can inform themselves.

managers can touch base with the website andsee what's expected. staff meetings are another great way to publishyour expectations. and sure, they may be in the order, they maybe in the cfr, but how do you tell your staff what you want with regard to how they shouldrequest leave, what you need in advance, what you don't need in advance. a staff meeting is a great way to publishthat widely so that your employees know what you need and what you expect, same thing withstaff newsletters or emails. now the last bullet really we'll discuss alittle bit more later, but that's sort of when you may have had an issue or a specificquestion, you don't have to tell the whole

staff a rule that you really are applyingor an expectation that you only have to one employee. you can send a specific email to an individualemployee that either clarifies your expectations or answers a question that they've asked oraddresses a thing that is specific to them. consistent application of rules. the first rule is, if you have a rule or apolicy or a procedure, use it. i can't tell you how many times i've had managers,you know, say, "well, this employee isn't doing this and i don't know what the answeris to this question and i don't know what to do."

and i'll say, "well, what's the rule and didyou use it?" "well, i'm not sure if there's a rule, andno, i didn't use it." so if there's a rule in place, use it withregard to all of your employees or at least refer to that rule as the starting point withregard to a leave issue. now, consistent application does not meanidentical application. so you don't have to treat every single personin exactly the same way because circumstances dictate outcome and circumstances dictatehow you might respond to a particular leave question, particularly with regard to reasonableaccommodation responsibilities. so you may have to or you may choose to oryou may need to give leave to an employee

in a different way or in a different timeor have a different requesting policy or a practice with regard to a reasonable accommodationcase. circumstances happen, life happens, and soyou have the discretion as a supervisor to be flexible in your application of the rules. and the way that looks in real life is youmay have someone who's gotten accommodation that relates to leave, other employees thinkthat that employee is being treated differently and they want to confront you and say, "well,why do i have to do x when he has to do y." and the answer is, "i'm enforcing federalregulations. i'm not going to give you any details butplease be assured that i'm following the rules

appropriately. if there's something that you personally needme to look at or address, i would be happy to do that." so don't get caught in the trap of thinking,"this is the rule and i don't have any flexibility." rules do have flexibilities, and as long asyou can explain why you've exercised the flexibility, you should be in good shape. documentation, keep accurate records, andmy inclination would be that you should always keep accurate records before you have a problemor an issue or a conflict. be in the habit of keeping track of who'son leave, whether they've properly requested

it, which leave you've approved. and instances if you had to deny leave, youknow, jot down why you denied it, what circumstances lead to your denial. if you've exercised one of your flexibilitiesand varied from what you normally do for good reason then document that good reason. if there's a dispute, document how you resolvedthat dispute. if an employee said, "hey, i don't reallythink you should have denied my leave," do a quick note to the file that indicates whatyou said, what happened, and how resolved the dispute in question.

similarly, if corrections are required, documentthe nature of the error and document the nature of the correction. everybody makes mistakes, so there's reallynothing that can't be corrected and don't get caught up in, "oh, well, the record saysthis and we coded him as awol so we can't change it," or "i approved the leave but ishouldn't have. i can't change it." of course you can change it. you just have to explain why you're makingthe change and document that clearly, so that going forward, if you need to look back andexplain why you did something, you're in a

position to do that both from your own recollectionbut more importantly from the documented record. so how do you identify potential leave concerns,and again, we start with the expectation that employees want to do what you've asked themto do, and that they're going to behave consistently with the rules that you set out. and sometimes that doesn't happen. and sometimes you kind of are thinking, "isthis a problem? is it not a problem? i don't know, i'm feeling some kind of feelingin the pit of my stomach. i don't know if there's an issue."

so how do you figure out whether there isa leave concern? and i would refer you back where we started,to the first rule, to your regulations, to the procedures. what, in the general sense, should employeesbe doing? and you look at that. and if you're feeling or noting or seeingthat an employee is deviating from that then there's some steps to take. and the first thing you're going to do issort of look at your most recent history. have they been absent for the last two orthree pay periods?

and during those pay periods is there a pattern? that they're absent on mondays, if they'recoming late, that they're calling at the last minute or they're not calling at all. what actually is happening with that individualemployee? once you've identified that you're going tojust make a note. and how you document it is really purely upto your personal preference, what works for you, what is consistent with your style asa manager. some people use charts, some people keep allof their leave information on that giant desk calendar that is too giant, and then onceyou put your books on it, you can't see it,

but some people use that. some people just have a separate leave calendar,and they put everything, all things related to leave on that calendar. now what i will say is stick to the facts. employee was here or wasn't here, employeecalled or didn't call. this is not the place for your editorial comments,thoughts, or subjective beliefs about why they weren't here. anything you write, and pretty much anythingyou say, ultimately could be discoverable either through the freedom of informationact or if we're in litigation is discoverable

in the litigation process. so make your recordations factual. these are to jog your memory. these are not to write your subjective beliefsabout, "gosh, i bet he was out playing pokemon go. what a jerk." this is the time to write down whether theywere there or not so that you can decide whether there's a problem that needs to have the nextstep taken. and further to that, i would say, "if youdon't want to talk about it, don't write it."

if it's something that's inappropriate fordiscussion with the employee, you shouldn't write it. and if you're writing something about an employee,it should be something suitable for them to see, read, and discuss. that's--that goes to all types of anythingthat you're writing. employees have the right to know what you'vewritten, so assume that they're going to see it and be pleased for them to see it becauseit should be an accurate reflection of what happened. so moving on, so what if we've done our chart,we're looking, we see, "oh, there is a problem.

this employee is not--conducting themselvesinconsistently with our leave rules and procedures. what's the next step?" well, as i said at the beginning, "every goodoutcome really starts with a conversation," and i like to think of counseling as a conversationwhere you start out and say, "hey, i've noticed the pattern. i'm not sure what's happening, but i've noticedon mondays you're not here or i've noticed on tuesday you get here 30 minutes late. and i just want to show you my notes and seeis that consistent with your recollection." and then you move forward from there.

they may say, "yes, you know, that's true. and i've been having this issue," or theymay say, "yeah, yeah, no, i don't think that's right," but whatever it is, everything hasto start with a conversation and a question. they may well have an issue that every tuesdaythe bus is late and so they haven't been able to get their kids to school on time. they may say, you know, "monday nights, iwatch football until 11:00. i'm really tired, and it'll be better in thespring." whatever they say--they're saying, you decidehow you're going to respond to it. but the counseling is not punitive.

the counseling is to open communications sothat you can see if there's a problem. if there is a problem, and that's your chanceto say, "i don't like it when you're late on tuesdays. would you please come on time?" or "if youare going to be late on tuesdays, maybe we need to look at changing your tour, becauseif 9:00 doesn't work for you, maybe 9:30 will work, but i need you to be reliable and predictablein your--in your attendance. so can we talk about how we can both be happyand have a place of yes?" that's what a counseling discussion is meantto do. and so that is what i mean when i say outlineexpectations.

you're going to talk about your rules, you'regoing to talk about your procedures, and you're going to say what you want, and give the employeea chance to say, "yes, i can do that. no, i can't do that. i can do that but i can't do this." whatever the interchanges, that's what's appropriateat the outset of a--of a--i'm putting problem in quotes, at the outset of a situation. and then you're also--and this is the partthat managers sometimes don't do but you must do because it's uncomfortable, convey theconsequences if there's not a change. "i need you to do x, y, and z.

if you do not then these are the things thatwill happen as a result of your failure to do what i've asked." that's a little uncomfortable, but again,in order for us to move forward we have to have that step happen. and so what are possible consequences? you can do a leave restriction. ultimately, if the leave restriction doesn'twork, we can--we'll talk about what discipline act--disciplinary actions will happen. but everything has to start with a conversationof expectations and consequences.

so let's talk a little bit about leave restrictions. now, leave restriction is a non-disciplinaryletter to the employee that conveys, essentially, what we just talked about in the counseling. your policy expectations regarding leave usage,specific information, like, "you have, you know, negative two hours of leave. the last time you worked a full pay periodwith that--was x." whatever you want to put in the leave restrictionthat summarizes how we got to this point, why or why am i putting you on a leave restriction. and a leave restriction is just the imposingof more specific, more stringent rules that

are really part and parcel of the larger setof rules that you already have in place. so these are, "you, mr. employee, have tofollow these call-in procedures." this is what i need to see by way of documentation. it's very specific. you should set out the time period for therestriction, and again, the consequences of not following the parameter set out in theletter. now, i will say i have seen people use leaverestrictions, and by the time i get it, someone has been on leave restrictions for a yearand a half. that's too long.

you used the wrong tool. leave restriction is meant to help a personget back on track for a finite period of time. it's not a forever home for the employee tolive in, because if they're on leave restriction for a year and a half, i would suggest thatwe haven't been doing things or monitoring closely enough and another discipline neededto happen somewhere in that--in that period so leave restriction is a tool, not a permanentsolution. so let's assume the leave restriction doesn'twork and you're continuing to have issues with an employee with regard to attendance. what are the types of charges that we wouldring based on leave or attendance issues?

and we'll talk about each of these, of that--absencewithout leave which is awol, failure to follow leave requesting procedures or instructionsand excessive absence. so awol, awol is--and you see the elementshere and i won't read them, but awol is, you were supposed to be at your--at a particularduty station at a particular time and you were absent without being on approved leave. that's what awol is. it's exactly what it sounds like. so let's briefly talk about the differencebetween leave without pay and awol. leave without pay is an approved leave categoryby definition.

it's absence that is granted by the agencyat the employee's request. two things about leave without pay. one, you can't make an employee take a leavewithout pay. so you can't say, "you won't--weren't here,i'll just put you on lwop." and two, you don't have to grant it exceptfor, as brenda discussed, in the fmla context, where they're under an approved fmla certificationin which case lwop is not discretionary. awol is entirely different. it is by definition a leave status that reflectsthat you were not on approved leave. it is a leave designation.

it's not punitive. so some people will say, "well, i alreadypunish them. i made them awol." well, awol is just what appears on their timecardthat means that they weren't at work that day and they're not going to get paid. that is not punitive. it is a status designation. we'll talk later, and we'll--and i'll explainthat you can use awol as the basis for discipline, but awol by itself is not a--it's not disciplinenor is it punitive unless you think not getting

paid is punitive, but that different. so let's talk about failure to follow leaveprocedures. and as a general rule, if someone is awol,it sometimes also means that they fail to follow your leave requesting procedures. so what are the components of this charge? the agency has a procedure for requestingleave, and that's important, because if you're going to charge someone with failing to followa procedure by definition you must have a procedure. and this is where we go back to where we startedour conversation.

you have to have set an expectation, and withregard to a leave requesting procedure, it's nice if you actually have it and it's writtenand you've published it to your employees so that you can say, "i had a procedure, theyknew about it, and they failed to follow it." you must have those things in place in orderfor this charge to work. and then you got the failure of the employeefollowing the procedures, but those are the components. so let's say you got a person who was awolbecause they didn't call in, you haven't heard from them in four days. you would charge them with both awol, whichis the absence without leave and with failure

to follow your requesting procedure, assumingthat calling in that you weren't coming is one of those procedures. even if they bring in medical documentationthat indicates they in fact were not awol because they were sick and incapacitated forduty, you could still sustain the failure to follow charge assuming they weren't incapacitatedand completely unable to call. so as a general rule, i would say these chargesare--go hand in hand, and i generally, if i have an awol charge, i also have a failureto follow charge. and we're going to talk a little bit aboutexcessive absence. this is the one category of leave that--orof discipline that can be charged even in

the face of leave that has been approved. and i'm just going to read to you the componentsof this because all the words in this particular charge actually are important, all of thesecriteria, which i referred to as the cook criteria, are vital in sustaining this charge. so you got an employee that was absent fora compelling reason beyond his or her control, so that approval or disapproval was immaterialbecause they could not be on the job. the absence is continued beyond a reasonabletime and the employee was warned that adverse action might be initiated unless the employeebecame available for duty on a regular full or part-time basis.

now, that second one is important. it's not just that you warned them, "if youdon't come, you will be awol." you must warn them that if you don't come,you may be subject to adverse action, and that's key. you have to warn them that their continuedabsence and unavailability could result an adverse action. and the third, you have to have informed theemployee that their position is needed and it has to be filled by an employee availablefor duty on a full or part-time basis. if these elements are all in place, even ifan employee has been on leave without pay

or approved sick leave or approved annualleave, in the period leading up to this charge, you can still charge for it's--for excessiveabsence. now, one caveat, you cannot include your fmlaperiod of absence in your total count. so if you say you've been out for six months,that six months has to exclude the fmla period of time, and that should be made clear inthe notice to the employee as well. do we have a question? >> melanie, we have question with respectto the cook criteria and how it is applied. >> uh-hmm. >> the agency wants to know, under what circumstanceswould the employee's response be acceptable

in that the agency would not need to takeaction? >> their response to the--i know you don'tknow because you're reading me that question. so you can't clarify >> in response to sending a letter along thelines of the cook criteria, when should the agency expect that the employee's responsedoes not require disciplinary action? >> i would say--i would--i would need to lookat it. and one thing that is not one of the cookcriteria but certainly i would think relevant in deciding how you're going to move forwardif the employee says, "yes, i've been a wreck for low these many months but i will be thereon monday, and i am fine."

i would consider it. now it doesn't necessarily mitigate the previousabsences, but that might be something you will consider and look into the circumstancessurrounding that particular response or that particular claim. similarly, if the employee says, "no, actuallyyou're count is wrong and i haven't been out for the amount of time that you set." or "there've been other circumstances thatweren't accurately recounted in any of your notices." that's clearly something you would considerbecause you want to be factually accurate

and react to what's actually happened, ifyou had a misunderstanding with regard to the length of absence. >> and under what circumstances would yousay that an agency should propose removal instead of suspension? >> with regard to what particular violation? >> the same scenario with respect to the cook. >> excessive absence is generally charged,that is the basis for removal, because really, "what you're saying is you've been absentfor such an extended period of time, we need someone to fill this position, so it doesn'tmake logical sense to suspend you for another

30 days because that is flies in the faceof our need to have someone doing the job." and what i would say with regard to all ofthese charges, let's remember why we're all here. the job of a manager or supervisor, and thenin greater degree of the agency, is to accomplish the mission. so your discipline related to leave shouldalways be within eye towards how is this behavior that just happens to be leave-related impactingthe mission of the agency. so i'm not going to suspend you for 30 daysbecause you haven't been coming to work and i need you here, if you haven't been comingto work because you can't, then what i need

is someone--is to unencumber the positionso the position can be filled. likewise, if you're always awol, not removingyou because i'm shaking my finger at you it's--because you're awol, it's you're not helping me accomplishmy mission, and so i need to make it possible for the mission to be accomplished. and so everything is informed by our needto accomplish the mission. every single discipline, every single actionthat we're looking at with regard to leave is how to allow the employees to have theirentitlements and still accomplish the mission. it's never, you know, an us versus them. it's a--it's a we.

all of this is about, "how do we get to theend, which is our mission? and how do we do that with compassion andwith allowing our employees to take advantage of their entitlements, but at the same time,do their job, do the job for which they were hired?" so i--if you take yourself back to that andinform your decisions based on that principle, it's sort of easier to figure out how to navigatesome of these and what to charge and when, and how strict you want to be with some ofthese flexibilities. >> we have another question with respect tofmla, when an employee has submitted medical documentation that supports intermittent fmla.

however, subsequent to that, the employeeis saying that they want to take fmla for consecutive weeks, the entire period. they do not have the medical documentationfor that. may the agency require them to return to work,should they require a disciplinary action, or put the employee on awol? >> i'm going to do two thing--two things. i'm going to--i'm going to toss part of thatto brenda, but i'm going to say what i think and then you can tell me if i'm dead wrong. >> sure.

>> i think with regard to the fmla certification,your absent--your absent should be consistent with what you've requested or what you'redoctor has certified. if there's variants from that, i would think,and this is where i'll ask you, that it would be logical to seek certification for what,essentially in some ways, is a new request. so that's the part--that's my answer to thatpart of it. with regard to whether or not there shouldbe discipline, i'm not clear on assuming that everything lines up with regard to those absences. i don't know under what circumstances disciplinewould be appropriate in that scenario. >> so

>> wait. >> yes. >> i would think it depend on if it was alegitimate--a legitimate request or not. so, i--if this--if they're going by the originalmedical documentation, i would seek the secondary. so i would go out and get a second opinion,is what i would do in that case. so--but not knowing all the circumstancessurrounding it, it's hard to say if i'm on the right track or not. >> and another question that just arrived,what if an employee is a veteran who has numerous appointments that require absences, wouldthis meet the definition of excessive absence

if the leave was approved and may the veteranbe disciplined for these absences? >> i would say that depends. it sounds like, and again, if i'm--if effectuallyi'm not accurate, it sounds like what you're talking about are intermittent absences thatmay happen not so much on--for consecutive days, weeks, or months but every so oftenor maybe even more than every so often, the person has a medical appointment. so, that is not something, just off the topof my head, that i would jump first to excessive absence. if there's a concern with regard to when appointmentsare scheduled or a concern as to whether the

appointments are actually happening, i thinkthere are other ways to address it. excessive absence is generally with regardto consecutive absences over a lengthy period of time, and it's for--where the employee,essentially, no matter what you say can't come to work, and that doesn't sound likethe situation you just described. so we're--i think we just finished talkingexcessive absences and we talked about charges. so let's talk briefly about, once you've noteda problem and you've decided to address it, at the end of the day, if the counseling hasn'tworked and you're not on the same page as the employee, and you're not having compliance,what can you, as a manager or supervisor, do?

and these are the same disciplinary actionsthat apply to every form of misconduct. the most lenient and the first step on theprogressive action or progressive discipline chart will be a letter of reprimand. as you see here, stays in your official personnelfile for between one to three years, sometimes your cba may call for it to be in for a differentlength of time, and it can be grieved through your administrative leave--through your administrativegrievance process or through the cba. it is not appealable to the merit assistanceprotection board unless it's an element of an individual right of appeal. and it, like any other employment conditionor employment action, can be raised as a complaint

with the eeoc. if the letter of reprimand hasn't worked orthe misconduct is sufficiently severe that you want to jump right to a suspension, youhave your suspensions for one to fourteen days, those remain in the opf forever. they are permanent and they travel with theemployee, also grieveable, not appealable to the board unless through ira, and they,like again, any other action can be raised and then for more serious misconduct that'srelated to leave, you've got suspensions of more than fourteen days that are appealableto the board, can be raised with the eeoc. and ultimately, you have a removal.

any and all of these could apply with regardto violation of leave procedures or policies. and i would say, again, let your decisionwith regard to what you're choosing be informed by how the person's misconduct, in this case,leave-related misconduct, is impacting on your mission, is impacting on the efficiencyof your office, is impacting on the environment of your office, all of those are factors thatyou would need to consider in deciding which disciplinary action to take once we've gottento that point. we've identified a problem, we've counseled,and we've determined that the problem is intractable and needs to be dealt with in a more formalway. one thing that comes up frequently and i thinkit's always an excellent idea, if you have

an employee, and this can happen really atthe beginning of the process or at any point, who's having leave-related issues, refer themto eap. eap always--i've never, ever, ever made aneap referral or contacted eap and not had an absolutely excellent outcome and excellentresult. eap is there to counsel, they're there tohelp with issues that may be completely not work-related, they'll help with child care,they'll help with elder care, they can counsel with regard to finances, anything that mightbe impacting an employee's life and therefore, as by definition, impacting their work lifeis an excellent subject for eap. and i think it's a great idea to refer youremployees even at the very beginning where

you see a leave issue sort of raising itshead, a referral is always a good idea and there's generally not a down side to it. and that is the end of my slide deck. you see some resources here. i think we've got time for a couple more questions,and i think brenda had one more item as we wrap up. >> melanie, we have another question withregard to the cook criteria that you referenced earlier. several people have asked, what is a generaltimeframe of absence that that criteria may

be use? >> there's--there is--i knew that questionwas coming. there's not actually a specific number, specificlength of time, i generally use, you know, in the several month category, and by several,i would say more than three is when you would start thinking about it. and again, this does not include the 12 weeksof flma that may have been taken. and so, for managers, sometimes it feels likeit really, really, really has been forever but you have to remember that 12 weeks isnot something you can count in your total. so, i would say, you know, when you're atthe end of two months going forward is when

you would start looking, and certainly startcommunicating with the employee with regard to the likelihood of their return, becauseone of the criteria is the medical condition beyond their control. so in order to bring that charge, you haveto have some specific knowledge about what's going on with the employee, and you do haveto have put them on notice that you're in need of their services with regard to fillingthe position. so after two months is when i would thinkabout giving the cook notice to the employee, then going forward depending on what the responseis. you're in a position to decide if that's anappropriate charge.

>> another question, can the speakers givean opinion as to the best practice for a manager who has an employee returning to work afteran injury or illness, can or should the supervisor get a release to full duty? >> i'm looking blank but i'm thinking. i would--i would say, it depends. the release to full duty may depend on whetherthe employee has medical standards or fitness standards in their pd. if they are fitness standards then certainlythe--you need certification that they can perform the job pursuing to those standards.

depending on the nature of your concern, iwould--as a general rule it's not my practice to ask for release to return to duty. it would depend on why you think you needit, what you think the risk to the--risk is with regard to the employee and to the workforce, but as a general rule, if they are coming back to work, you should assume theywere cleared by their doctor, unless you have evidence that you need to ask the specificquestion, but i generally don't ask for releases to return to duty unless there's a specificconcern that can be articulated about that particular employee in that particular workenvironment. >> and i guess they want my opinion, too.

i would say--it depends on why you're askingthe question. or--are you asking the question because youbelieve that the employee is coming back to duty too soon because they're just one ofthose people that just have to be at work? if it's that kind of situation, you shouldprobably keep an eye on the individual and make sure they're not doing too much, offerthe flexibilities that are out there in order to help them through this process. they could come back on a, you know, moreof a part-time bases, they can, you know, adjust their schedule. you know, there are a number of things thatyou could actually do to help that individual

until they're fully up to speed and able toperform to the full extent. >> and all that--all that goes back to whatwe've been talking about. everything is a conversation. "hi. are you sure you're ready to come back? well, if you're having trouble, please letme know. if you--if you need an adjustment, if youneed leave, if you need something, how can i help you? and let me know what you need."

and then you go from there. managers get into a lot of trouble just makingassumptions about what employees can or can't do. and one of the great things about us is wecan ask questions and we can get answers, and then you make a decision based on informationthat you actually have, not just what you're guessing might be the case. >> i agree. >> another fmla question. what happens when an employee has exhaustedall of her fmla but is still having leave

issues, will the agency proceed to a leaverestriction or disciplinary action? >> i would say that depends on what you meanby leave issues. if you mean they're not coming to work andthey're not requesting leave, that's not a leave issue. that's misconduct, and so i would say, yes. and from--at least from what's in the question,i don't know what, if anything, that has to do with the fmla. if they still have a need for leave that isrelated to the medical condition that precipitated the fmla, then discipline may or may not benecessary, and you need to talk about whether

or not they have sick leave available, whetheror not advance leave is appropriate, whether or not there are things that can be done. so leave issues is sort of a broad term ifit means people just not coming to work and not calling in and following procedures orif it means they have a need for leave that has extended beyond what's already in place. and that's again is a conversation to seewhat can be done or maybe a conversation to say, "we've done all we can, and so we needto think of other options." but i would say, it just depends on what leaveissues means. >> yes, because you can always provide someonewith more leave.

if this is a dedicated employee that wentout and say they're having a--just a very bad situation but eventually they'll be ableto come back and perform very well again, you may want to provide that--them that additionaltime in order to come up to speed. so--okay. i guess it's over to me to kind of wrap upour portion. what i wanted to do is just point out to yousome of the documents that we have for resources at the very end of your slide deck. one is the handbook for leave and workplaceflexibilities for childbirth and adoption or foster care.

this is something that our staff developedas a result of the president's memorandum from january 15th. it's a 70-page guide that provides examplesof different ways that employees can use their leave for childbirth, adoption, or fostercare. in fact, it was so successful that the whitehouseand others asked us to do a separate guide on--for elder care. and that's the second resource that you'llsee there, a handbook on workplace flexibilities for work life programs. we also developed an online course that'sfree, under hru.gov on the introduction to

leave work life and workplace flexibility. it's available to you. the last thing i'd like to mention is to makeyou aware that we'll be having regulations come out on the disabled veterans leave soon. this was something that was past from thewounded warriors leave act of 2015 on november 5th, 2015. we were given nine months to get our regulationsproposed and final on this new category of leave called disabled veterans leave. it provides a hundred and four hours of leaveto a veteran who is 30% disabled or more.

it only last for a one year period. it only--is provided to anyone who is a newemployee after november 5th of this year. also, we'll be having final regulations comeout on religious comp time off. if you're familiar with the religious comptime regulations, they're very, very brief. they don't provide a lot of guidance. so, this regulation will provide guidanceon how long they have to use the religious comp time. you can ask them for the religious observancethat they have. they can--it kind of documents the time thatthe employee will need to take off for the

religious observance and let them make upthe time with respect to when it's convenient for the agency. a lot of this was to prevent abuses that wereout there where people were just accumulating large amounts of religious comp time and justtaking off. so, they should be out, i would say, probablyin september. disabled veterans leave will be out by august6th because it's mandated by law that we have regulations out by august 6th. and that's all i have. how about you, cynthia?

>> thank you so much, brenda and melanie. on behalf of partnership and labor relations,we appreciate your sharing your expertise during today's round table on understandingleave options in the federal workplace and misconduct implications. your presentation has provided an outstanding,an in depth overview of the federal leave system and how to address conduct issues thatmay arise, related to time and attendance i thank as well opm's communication stafffor your webcast of the round table. and thanks to my colleagues in partnershipand labor relations for your work on this dynamic round table.

and thank you for participating today. we look forward to having you at the nextemployee and labor relations roundtable. finally, please remember that shortly youwill receive an email with a hyperlink to an online evaluation form, courtesy of surverymonkey.com. your feedback helps us to plan future roundtables, and we appreciate you're taking the time to complete the survey. have a great afternoon.