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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 mental or physical issues or disabilities. In re Martinez, CSB 09-12A, 3 (8/15/13). 

Subject to a supervisor’s approval and appropriate staffing, the CSRs 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 10-hour shift during the same week as a City holiday, since the CSRs 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 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).

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(b).     

It is improper for an agency to place an absolute limit on an employee’s allowed instances 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 take 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, 17-18 (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 it. In re Leslie, CSA 10-11, 18 (12/5/11), citing 29 CFR 825.308(e).   

An employer has the 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).

In order to prove an employee violated agency’s attendance policy, and therefore abused leave in violation of CSR 16-60 K. [now 16-28M], 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 MounjimCSA 87-07 (7/10/08), aff’d In re Mounjim, CSB 87-07A (1/8/09).

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

Agency discipline of appellant for her use of sick leave in excess of its attendance policy was error where it did not dispute the legitimacy of her reason for using sick leave and she used her available banked leave. In re Rock, CSA 09-10, 6 (10/5/10).

Agency violated the CSRs in disciplining appellant for her use of sick leave,  more than seven times in one year, where it did not dispute that she was legitimately ill and she used her available banked leave. In re Rock, CSA 09-10, 6 (10/5/10).   

Agency had no responsibility to provide appellant with accurate leave balances, as part of its 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, CSA 102-09, 4 (7/20/10).

The agency’s benefit policies control 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, CSA 102-09, 4 (7/20/10).  

Agency did not violate CSR 11-154 [now 12-24C], governing the use of FMLA leave, when it did not inform appellant of her correct leave balances, where neither federal law nor the CSRs 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 (7/20/10).

Appellant’s detrimental reliance on a draft leave history does not render the Agency’s FMLA designation improper under CSR 11-154 [now 12-24C], where she unreasonably relied on the draft leave history, which she knew was high and was not final, she had access to her own leave balances, and she failed to confirm her leave balance prior to taking extended leave. In re Anderson, CSA 102-09, 5 (7/20/10).

Appellant’s challenge to two hours’ vacation leave to cover shortage on time sheet was dismissed for failure to state a claim where he claimed his sick leave should cover the shortage, but he had none. In re Schultz, CSA 130-05, 2 (2/27/06).  

Appellant’s failure to submit a timely request for FMLA leave to care for her daughter prevents her from later claiming she was entitled to FMLA protection for her absence. In re Edwards, CSA 21-05, 5 (2/22/06).

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).

Appellant’s request for 90 days of leave without pay was not a reasonable accommodation, which the agency may grant for good cause, where the evidence showed appellant was unable to perform his essential work functions for an indefinite time. 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), aff’d In re Espinoza, CSB 30-05A (8/23/06). 

In applying 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), aff’d In re Espinoza, CSB 30-05A (8/23/06) (decided under former CSR 16-51 A.5). 

Departmental rule conflicts with sheriff’s collective bargaining agreement and CSRs, 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, 9 (1/11/06), affirmed In re Espinoza, CSB 30-05A (8/23/06) (decided under former CSR 16-51 A.5).  

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 to appellant who requests it for the purpose of preparing appeal for hearing. In re Herzog, CSA 51-05 (Order 7/5/05).  

 
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Americans with Disabilites Act (ADA)
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