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RULE 11:  UNPAID LEAVE


Before sending an employee for a fitness for duty examination on unpaid leave, requiring her to use sick or vacation leave, a supervisor must reasonably believe the employee cannot perform his or her duties due to medical problems or disabilities. In re Martinez, CSB 09-12, 3 (8/15/13), citing 29 C.F.R. § 1630.14(c). 

Sheriff's departmental order on fitness for duty examinations was not intended to allow a supervisor to send an employee for an examination out of spite or on a whim, or without sufficient information to form a reasonable belief that mental or physical issues or disabilities were preventing an employee from performing the job in an acceptable manner. In re Martinez, CSB 09-12, 3 (8/15/13), citing 29 C.F.R. § 1630.14(c).

Supervisor who ordered fitness for duty examination did not have reasonable basis for concluding that employee had a breakdown when she did not witnessed the incident, and the direct supervisors who witnessed it believed it was not a breakdown and would have sent the employee back to work. In re Martinez, CSB 09-12, 4 (8/15/13).

Lacking sufficient information to reasonably conclude that appellant's inappropriate behavior prevented her from performing her job acceptably due to medical problems or disabilities, management faced a disciplinary issue, not a medical one. In re Martinez, CSB 09-12, 4 (8/15/13).

Every act of inappropriate behavior does not justify an order for a fitness for duty examination. In re Martinez, CSB 09-12, 4 (8/15/13). 

Deference to management decision-making cannot replace evidence or the requirement that management have sufficient information to form a reasonable belief that a fitness for duty examination is justified. In re Martinez, CSB 09-12, 4 (8/15/13).

An agency has authority to assess leave without pay and to impose disciplinary action for the same incident. In re Lottie, CSB 132-08 (7/7/09).
 
Rule concerns agency’s decision to grant employee request for leave without pay, not whether agency may assess leave without pay for an employee absence. In re Vigil, CSA 110-05, 6 (3/3/06).

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 and appellant could not perform his essential work functions with or without reasonable accommodation. 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 for death of a member of the employee’s immediate family. In re Espinoza, CSA 30-05, 4 (1/11/06). 

In applying rigid departmental rule mandating discipline after a certain number of sick days, undersheriff’s assumption of leave abuse created irreconcilable friction with career service rules by leaving no room for the legitimate application of sick leave rule. In re Espinoza, CSA 30-05, 7 (1/11/06). 

Agency’s application of departmental rule impermissibly violated appellant’s right to take accumulated sick leave. In re Espinoza, CSA 30-05, 7 (1/11/06). 

Departmental rule requiring discipline after 7 days of sick leave conflicts with sheriff’s collective bargaining agreement. In re Espinoza, CSA 30-05, 9 (1/11/06), modified In re Espinoza, CSB 30-05 (8/23/06). 

The purpose of sick leave is to allow leave for personal or family incapacity due to illness or for a death in the family. In re Conway, CSA 40-05, 4 (8/16/05). 

 
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