1. Can an agency require employees to submit written leave requests?

 Yes.  Each agency must establish procedures for its time and attendance recordkeeping system.  The procedures should describe the requirement for a written request for leave, with provisions for how leave should be requested in emergency situations where it is not possible to schedule leave in advance.  Agencies should inform employees that failure to follow the procedures for requesting leave may result in a denial of the leave request, and ultimately to an adverse action based on the resulting absence without leave (AWOL) and failure to follow established leave procedures.

 2. What should an agency do in a situation where it charges AWOL but later determines that requested leave (sick, annual or leave without pay (LWOP)) should have been granted (e.g., the employee submits medical documentation for sick leave several weeks after the leave request was denied)?

 As long as the employee has sufficient leave to cover the absence, the agency may substitute approved leave for AWOL.  The appropriate authority in the agency should make the determination that the absence was improperly charged as AWOL.

 3. When is an agency required to grant sick leave?

 An agency must grant sick leave under conditions provided in 5 CFR 630.401, including:
 

•  when the employee receives emergency medical, dental, or optical examination or treatment;
•  when the employee is incapacitated for the performance of duties by physical or mental illness, injury, pregnancy, or childbirth;
•  when the employee would, as determined by the health authorities having jurisdiction or by a health care provider, jeopardize the health of others by his or her presence on the job because of exposure to a communicable disease.

•  when the employee provides care for a family member as a result of physical or mental illness, injury, pregnancy, childbirth or emergency medical, dental, or optical examination or treatment; or
•  when the employee makes arrangements necessitated by the death of a family member or attends the funeral of a family member.

 4. Must an agency advance leave?

 The decision to grant advanced annual and sick leave is left to the discretion of the agency.  There are limits on the amounts of leave that can be advanced.  For the purposes of using sick leave for family care or bereavement, agencies may advance up to 40 hours of sick leave.  Agencies may not advance sick leave so that an employee may meet the requirement to maintain a balance of 80 hours of sick leave in his or her account or to use additional sick leave for these purposes.  The agency should not advance leave when there is little or no likelihood that the employee will return to work.  In addition, any indebtedness resulting from advanced leave is forgiven when an employee retires on disability.

 5. Under what circumstances can an agency deny leave requests?

 An agency can deny sick leave for nonemergency medical, dental, or optical purposes, even with acceptable medical documentation when it needs the employee's services.  The agency can also deny emergency or nonemergency sick leave when the employee does not supply sufficient medical documentation, if required.  The same is true for annual leave. In addition, an agency can generally deny a request for LWOP at its own discretion (with limited exceptions), even if the employee has good reason for requesting it.  Limited exceptions, where the agency would grant an employee’s request for LWOP are: cases where the employee invokes his or her entitlement to absence under the Family and Medical Leave Act and who otherwise qualifies for participation; cases where a claim is pending with the Office of Workers' Compensation (OWCP), and during any period when the employee is in receipt of OWCP benefits; cases where the employee is a disabled veteran receiving medical treatment; and cases where the employee is a reservist and must be absent from work to attend military training.

 6. Can an agency take action based on approved leave?

 The general rule is that an adverse action cannot be based on leave that the agency has approved, mainly because the agency has the normal discretion to approve or disapprove leave.  An agency may base an adverse action on excessive unscheduled LWOP only if all three of the following criteria are met:

 • The employee's excessive absences are uncontrollable and not the fault of the employee.  Approval or disapproval of the leave would be immaterial since the absences will continue.
 • The absences have continued beyond a reasonable period of time, and the agency needs the employee's services on a regular, full-time or part-time basis.
 • The agency warns the employee that an adverse action might be initiated unless the employee becomes available for work on a regular, full-time or part-time basis.

 Yes.  In Wilkinson v. Air Force, 68 M.S.P.R. 4 (1995), the appellant was removed for failure to request leave according to established procedures.  The Board held that agencies (both Postal and non-Postal agencies) may discipline employees for failure to follow established procedures, so long as the employee is on notice of the agency's requirements.  This holding applies even when the agency eventually approves the leave in question or in cases where the Board determines on review that the agency's denial of a leave request was unreasonable.  Looking to Fleming v. U.S.P.S., 30 M.S.P.R. 302 (1986), the Board noted that an employer is "doubly burdened" by an unscheduled absence--once for the loss of productivity and again for the lost opportunity to plan for the absence.  The Board sustained the removal.

 8. What kind of medical documentation is appropriate when an employee requests sick leave?

 Agencies usually consider the employee's personal certification, i.e., a signature on a leave slip, a phone call when ill, etc., to be sufficient in most cases.  When an employee has no leave to use, agencies often require more formal procedures for requesting LWOP or advanced leave.  If there is a lengthy absence, agencies usually request a greater amount of documentation, typically selecting some or all of the medical documentation items listed in 5 CFR, part 339.  Finally, if a problem with excessive absenteeism is developing, agencies typically have policies for leave restriction letters or memos.  These set out the reasons for requiring more evidence, types of acceptable evidence, conditions for presenting the evidence, and include time limits that will enable the employee to obtain approval of subsequent emergency and nonemergency leave requests, and the consequences of not doing so.

 Leave - Family and Medical Leave Act

 9. What are an employee's appeal rights under the Family and Medical Leave Act (FMLA)?

 If an employee believes an agency has not fully complied with the rights and requirements provided by Title II of FMLA and the OPM's implementing regulations at 5 CFR 630.1201 through 630.1211, the employee may file a grievance under applicable agency administrative procedures or negotiated grievance procedures.

10. Does the invocation of FMLA delay the processing of an adverse action?

 No.  As long as the action taken (or proposed to be taken) by the agency is based on a particular set of circumstances and charges unrelated to FMLA, the agency can proceed with the action.

11. In a situation involving a long-term absence that prompts the agency to propose removal for medical inability or inability to maintain a regular schedule, would entitlement to FMLA prevent the agency from proceeding with the removal?

 No.  The invocation and granting of FMLA leave would not alter the agency's charges.

12. If an employee is working under leave restriction requirements, would those requirements also apply to the employee's request for leave under FMLA?

 If the employee is incapacitated due to illness or injury, the leave restriction documentation requirements would likely overlap with those of FMLA.  However, an agency may not require any additional personal or confidential information on the medical certification than that required by OPM's regulations.  In other situations covered by FMLA, e.g., care of a family member with a serious health condition, FMLA requirements would supersede the leave restriction requirements.

13. Can an agency require an employee to take a medical exam upon returning to duty after being absent on FMLA leave?

 Yes. OPM's final regulations that implement the Family and Medical Leave Act permit an agency to require medical certification upon return to work.  Agencies now have the flexibility to decide whether or not medical certification will be required when the employee returns to work after using FMLA leave.  Agencies that implement a policy that requires medical documentation upon return to work are cautioned to apply the policy consistently  among its workforce.

 14. What is the relationship between an agency's duty to offer reasonable accommodation to a qualified handicapped employee and the employee's entitlement to leave under FMLA?

 Nothing in FMLA modifies an agency's duty to offer accommodation to an employee under the Rehabilitation Act.  An agency must comply with whichever statute provides the greater rights to the employee.  More specifically, an agency may not offer accommodation which would result in the employee foregoing his or her entitlement to FMLA.  For example, if an employee who in now employed in the Washington, DC area needs to work in St. Louis for several months in order to care for a family member who is recovering from surgery, an agency could not require the employee to accept a temporary detail to the St. Louis branch office instead of taking LWOP under FMLA.

Leave - Other Frequently Asked Questions

15. Must an employee maintain 80 hours of sick leave in his or her sick leave account in order to use leave under FMLA?

 There appears to be confusion as to the entitlement and requirements under the FMLA and the Federal Employees Family Friendly Leave Act.

 FMLA entitles covered Federal employees to a total of 12 workweeks of unpaid leave (LWOP) during any 12-month period for certain family and medical needs.  There is no requirement that an employee maintain 80 hours of sick leave in his or her account in order to use unpaid leave under FMLA.  An employee may elect to substitute paid leave (e.g., annual or sick leave) for the unpaid FMLA leave, but only to the extent that such paid leave is permitted under current law and regulations.

 The Federal Employees Family Friendly Leave Act permits most full-time employees to use a total of up to 104 hours of sick leave each leave year to provide care for a family member or to make arrangements for or attend the funeral of a family member.  An employee may use 40 hours of sick leave for these purposes without any further requirements regarding the employee's sick leave balance.  An employee may use up to 64 additional hours of sick leave if he or she maintains a balance of at least 80 hours in his or her sick leave account.

16. Under the Federal Employees Family Friendly Leave Act, what is the meaning of the phrase "to give care or otherwise attend to a family member?"

 The Act authorizes the use of sick leave to give care for or otherwise attend to a family member having an illness, injury, or other condition which, if an employee had such a condition, would justify the use of sick leave by the employee.  In other words, if the family member were an employee, and his or her condition would justify the use of sick leave, the employee's use of sick leave to care for the family member is justified.

 OPM believes that the intent of law is to allow an employee to provide physical care and other assistance to a family member, as appropriate.  This may include, for example, an employee providing transportation and/or accompanying a family member to a health care provider's office or to a hospital or other health care facility, providing assistance during examination and/or treatment, and providing care and assistance during recovery.  Under agency policies, managers and supervisors must use their judgment in administering the use of sick leave for family care or bereavement in a fair and equitable manner.  It is not possible for OPM to regulate or specify the criteria for every situation that may arise.

17. What recent changes were made to OPM's regulations on the recredit of sick leave after a break in service?

 Previously, OPM's regulations in 5 CFR 630.502 (b) provided that an employee was entitled to a recredit of sick leave if he or she was reemployed in another Federal position within 3 years after separation.  On December 2, 1994, OPM issued final regulations that removed the 3-year break-in-service limitation on the recredit of sick leave for former employees who are reemployed on or after December 2, 1994.  Sick leave may not be recredited to employees who were reemployed in the Federal service before December 2, 1994, and who previously forfeited sick leave under the former rule.