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Rule 11: Sick Leave

11-32: Sick leave policy 

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 seven days of sick leave conflicts with sheriff’s collective bargaining agreement. In re Espinoza, CSA 30-05, 9 (1/11/06), modified on petition for review. 

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). 

11-36: Reporting and investigation of sick leave  

A department or agency has an undisputable right to control the attendance of its employees in order to allow it to plan for staffing to accomplish its work. In re Garcia, CSA 123-05, 5 (2/27/06), citing In re Martinez, CSA 52-02 (5/15/02); Hubble v. Dept of Justice, 6 M.S.P.R. 659 (1981). 

11-80: Leave without pay  

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 09-12A, 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 09-12A, 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 09-12A, 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 09-12A, 4 (8/15/13). 

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

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11-81: Leave without pay - policy  

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).


11-90:  Unauthorized absence for non-exempt employees 

 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).  

11-150: Family & Medical Leave Act Policy 

The Career Service Rules are intended to comply with and be interpreted as consistent with the FMLA and its corresponding regulations.  In re Leslie, CSA 10-11, 16 (12/5/11), citingCSR 11-150.    

FMLA-related leave issues which are not addressed in CSR 11, are governed by the FMLA and its corresponding regulations.  In re Leslie, CSA 10-11, 16 (12/5/11), citing CSR 11-150.  

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). 

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11-151: When Leave under the Fanily & Medical Leave Act May be Used 

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

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

An employer may satisfy any doubt regarding the validity of an employee’s FMLA absences by providing her 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).    

Even when appellant was absent more frequently than her physician’s estimate of intermittent FMLA leave, the Agency was required to approve additional reasonable absences, as long as she had not exhausted her twelve-week entitlement.  In re Leslie, CSA 10-11, 18 (12/5/11). 

The difference between physician’s estimate of three absences per month and four actually taken was not significant enough to permit the Agency to request recertification.  In re Leslie, CSA 10-11, 18 (12/5/11). 

11-153: Requesting FMLA leave 

The FMLA permits an employer to require an employee to provide subsequent re-certifications in connection with an employee’s absences, on a “reasonable basis”  as defined in the federal regulations.In re Leslie, CSA 10-11, 17 (12/5/11), citing 29 U.S.C. § 2613(e).  

An agency is limited as to the frequency with which it may request recertification, by the duration and circumstances of the certified leave.  In re Leslie, CSA 10-11, 18 (12/5/11). 

An employer may request recertification no more than every 30 days and only in connection with an absence by the employee, unless an exception in the regulations applies.  In re Leslie, CSA 10-11, 17 (12/5/11), citing 29 C.F.R. § 825.308(b)(2) and (c)(1)(2) and (3)). 

If an employee’s qualifying condition lasts more than 30 days, the employer must wait until that period expires before requesting a recertification, unless an exception in the regulations applies.In re Leslie, CSA 10-11, 17 (12/5/11), citing 29 C.F.R. § 825.308(b)(2) and (c)(1)(2) and (3)). 

An employer may request recertification in less than 30 days when: (1) the employee requests an extension of leave; (2) circumstances described by the previous certification have changed significantly; or (3) the employer receives information that casts doubt upon the continuing validity of the certification.  In re Leslie, CSA 10-11, 17 (12/5/11), citing 29 C.F.R. § 825.308(b)(2) and (c)(1)(2) and (3)).  

Request for FMLA leave must be submitted in advance of need, or as soon as practicable after an emergency. In re Garcia, CSA 123-05, 3 (2/27/06).

 Request for FMLA leave six weeks after the leave was to end is untimely. 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). 

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). 

D:  An employee requesting FMLA Leave must provide to the appointing authority all information necessary to determine if such leave is appropriate. 

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).   

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11-154: Use of FMLA Leave 

A: No more than twelve (12) workweeks of FMLA leave may be used in any twelve (12) month period. The twelve (12) month period shall begin when FMLA leave was first used by an employee. 

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). 

Whether there is paid leave is governed by an agency’s benefit policies, not the FMLA.  In re Anderson, 102-09, 4 (7/20/2010).   

FMLA permits an eligible employee to choose 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 employer’s paid leave policy.  In re Anderson, 102-09, 4 (7/20/2010).   

Agency did not violate this Rule by providing incorrect 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). 

B: FMLA Leave shall be granted consecutively, intermittently or on a reduced leave schedule, as provided for under the FMLA.  Provided, however, if an employee requests FMLA  leave intermittently or on a reduced leave schedule after the birth or placement of a child for adoption, foster care or legal guardianship, such leave shall be granted if it is reasonable operational necessity of the agency, as determined by the appointing authority. 

Intermittent FMLA leave is leave used in separate blocks of time due to a single qualifying reason, 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 intermittent FMLA leave based on a physician’s estimate of the number and duration of absences per month.  In re Leslie, CSA 10-11, 16-17 (12/5/11). 

Intermittent FMLA leave begins on the first absence caused by that condition, and it covers every subsequent absence caused by that condition during the same twelve-month period.  In re Leslie, CSA 10-11, 17 (12/5/11).  

A series of absences for the same medical reason taken during the same twelve-month period comprises one period of intermittent FMLA leave.  In re Leslie, CSA 10-11, 17 (12/5/11).  

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

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C: It is the appointing authority's responsibility to designate qualifying leave as FMLA leave and the appointing authority shall notify the employee of such designation and provide other required information about FMLA leave.  An employee may not refuse to allow the appointing authority to designate qualifying leave as FMLA leave. 

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), quoting 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).   

D: FMLA leave is unpaid leave, unless an employee elects to substitute available paid leave for unpaid FMLA leave, subject to the limitation in this Rule 11 on the use of paid leave while on disability leave or Workers' Compensation leave. 

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