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(See also Rule 11)

Before sending an employee for a fitness for duty examination, a supervisor must reasonably believe the employee cannot perform his or her duties due to medical problems or disabilities.  In re Martinez, CSB 09-12A, 3 (8/15/13).   

Subject to a supervisor’s approval and appropriate staffing, the Career Service Rules permit employees, who are required to work on City holidays, to take paid leave on another day during the same week as the holiday.  In re Leslie, CSA 10-11, 16 (12/5/11).

Appellant was within her rights to request one hour of holiday leave at the end of a ten-hour shift during the same week as a City holiday, since  the Career Service Rules permit employees who must work on City holidays, to take paid leave on another day during the same week.  In re Leslie, CSA 10-11, 16 (12/5/11). 

Intermittent FMLA leave is leave used in separate blocks of time for a single qualifying reason.  In re Leslie, CSA 10-11, 17 (12/5/11), citing 29 CFR § 825.202(a)-(b).

Intermittent FMLA leave may be used to provide care for a covered family member, whether for planned or unanticipated treatment of a serious health condition. In re Leslie, CSA 10-11, 17 (12/5/11), citing 29 CFR § 825.202(a)-(b).     

It is improper for an agency to place an absolute limit on an employee’s allowed incidences of intermittent FMLA leave based on a physician’s estimate of the number and duration of FMLA-qualifying absences per month listed on a medical certification form.  In re Leslie, CSA 10-11, 16-17 (12/5/11). 

Intermittent FMLA leave begins at the first absence caused by the qualifying condition, and extends to every other absence caused by that condition during the same twelve-month period.  In re Leslie, CSA 10-11, 17 (12/5/11).

Intermittent FMLA leave is a single twelve-month period of leave containing a series of absences. In re Leslie, CSA 10-11, 18 (12/5/11).

An employee may intermittent FMLA leave consistent with the physician’s estimate of care that will be required, up to the twelve-week limit within a twelve-month period. In re Leslie, CSA 10-11, 17 (12/5/11).

An agency may require an employee to provide re-certification of (1) the estimated duration of the medical condition; or (2) circumstances of the leave, when the employee requests an extension of leave, when there is a significant change in circumstances, or when new information raises questions about the validity of the certification.  In re Leslie, CSA 10-11, 17 (12/5/11), citing 29 CFR § 825.308(b)(2),(c)(1)-(3),(e).       

An employer may satisfy any doubt regarding the validity of an employee’s FMLA absences by providing the health care provider the employee’s absence pattern and asking if the need for leave is consistent with such a pattern.  In re Leslie, CSA 10-11, 18 (12/5/11), citing 29 CFR 825.308(e).   

It is the employer’s responsibility to determine when FMLA leave is appropriate, to inquire as to specific facts to make that determination, and to inform the employee of his or her entitlements.  In re Leslie, CSA 10-11, 17 (12/5/11), citing Xin Liu v. Amway Corp., 347 F.3d 1125, 1134 (9th Cir. 2003).   

It is improper for an agency to designate an employee’s absence as FMLA if the reason for the absence was not FMLA-related, In re Leslie, CSA 10-11, 16 (12/5/11), citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 96 (2002).  

Where Appellant claimed her agency should have notified her that she qualified for FMLA leave, her  discovery request was legitimate which asked what training the agency provides supervisors regarding health conditions that qualify for FMLA leave.  In re Martinez, CSA 85-10, 2 (Order 1/5/11).       

In order to prove an employee violated police department’s attendance policy, and therefore abused leave in violation of CSR 16-60 K., the agency must prove (1) it established an attendance standard; (2) it clearly communicated that standard to the employee; and (3), the employee failed to meet that standard.  In re Rock, CSA 09-10, 5 (10/5/10), citing In re Mounjim, CSA 87-07 (affirmed CSB 1/8/09).

Although a department or agency has the right to control the attendance of its employees, agency policies that are inconsistent with, and create an irreconcilable conflict with, the application of the Career Service Rules are unenforceable.   In re Rock, CSA 09-10, 5-6 (10/5/10), citing In re Garcia, CSA 123-05, 5 (2/27/06) and In re Espinoza, CSA 30-05 (CSB 8/23/06).

Discipline for use of sick leave in excess of Agency attendance policy was error where the Agency did not dispute the legitimacy of employee’s illnesses and employee used available banked leave.   In re Rock, CSA 09-10, 6 (10/5/10).

Agency violated this Rule in assessing discipline for Appellant’s use of sick leave in more than seven incidences in one year, where Agency did not dispute that Appellant was legitimately ill and she used her available banked leave.  In re Rock, CSA 09-10, 6 (10/5/10).   

Employee failed to establish that the Agency had the responsibility to provide her with accurate leave balances, as part of the Agency’s responsibility to “provide other required information about FMLA leave,” where FMLA does not require an employer to notify an employee that she has or lacks paid leave, and does not create the right to paid leave if none had been earned under the Agency’s benefit policies.  In re Anderson, 102-09, 4 (7/20/2010).

The Agency’s benefit policies controls the existence of paid leave, not the FMLA, which only permits an eligible employee to choose to use accrued paid leave, provided by the employer and accrued pursuant to established policies of the employer, concurrently with unpaid FMLA leave, provided the employee complies with any additional requirements in an employer’s paid leave policy.  In re Anderson, 102-09, 4 (7/20/2010).  

Agency did not violate CSR § 11-154, governing the use of FMLA leave, when it did not inform appellant of her correct leave balances, where neither federal law nor the Career Service Rules require that an employer re-send a designation form every time there is a change in the amount of paid leave.  In re Anderson, 102-09, 5 (7/20/2010).

Detrimental reliance on a draft leave history does not render the Agency’s FMLA designation improper under CSR § 11-154, where Appellant unreasonably relied on the draft leave history, which she knew was high and was not final, and she had access to her own leave balances, and she failed to confirm her leave balance prior to taking extended leave.  In re Anderson, 102-09, 5 (7/20/2010).

Appellant’s challenge to two hours’ vacation leave to cover shortage on time sheet was dismissed for failure to state a claim over which hearing office has jurisdiction.  In re Schultz, CSA 130-05, 3 (2/27/06).   

Appellant’s failure to submit a timely request for FMLA leave to care for her daughter prevents appellant from now claiming absence was entitled to protection under FMLA.  In re Edwards, CSA 21-05, 5 (2/22/06); In re Garcia, CSA 123-05, 3 (2/27/06).

Appellant’s failure to provide requested supplemental information regarding seriousness of condition, abdominal pain and nausea, and failure to indicate whether request was for intermittent leave, justified agency’s denial of FMLA leave based on incomplete medical certification.  In re Edwards, CSA 21-05, 5 (2/22/06).

Request for 90 days of leave without pay was not a reasonable accommodation when appellant analyst’s work was already backlogged, causing significant strain on other analysts and the agency’s obligations to process applications for minority contractors.  In re Torres, CSA 97-05, 3 (2/21/06).

Sick leave for Career Service employees is authorized for necessary care and attendance during sickness or death of a member of the employee’s immediate family.  In re Espinoza, CSA 30-05, 4 (1/11/06), affirmed CSB 8/23/06. 

In applying rigid departmental rule mandating discipline after a certain number of sick days, undersheriff’s assumption that appellant abused sick leave impermissibly violated her right to take accumulated sick leave.  In re Espinoza, CSA 30-05, 7 (1/11/06) (decided under former §16-51 A. 5), affirmed CSB 8/23/06. 

Departmental rule conflicts with sheriff’s collective bargaining agreement and Career Service Rules, which allow employees unpunished use of sick leave as long as the leave is earned and is used for a proper reason.  In re Espinoza, CSA 30-05, 7 (1/11/06) (decided under former §16-51 A. 5), affirmed CSB 8/23/06.

The purpose of sick leave is to allow leave for personal or family incapacity due to illness or death in the family.  In re Diaz, CSA 45-05, 5 (Order 9/7/05).

Agency is not required to grant administrative leave when that leave is for the specific purpose of preparing appeal for hearing.  In re Herzog, CSA 51-05 (Order 7/5/05).    

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