© Tully Rinckey PLLC 2011
About Your Presenter
Joanna S. Friedman, Esq.
What You Will Learn Today
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Distinctions between performance and disciplinary based actions
Proper recourse when confronted with a disciplinary or performance based
action
Discuss what the agency must prove for disciplinary cases
Procedural aspects in pursuing performance or disciplinary actions
Discuss remedies at the MSPB or Agency level
Discuss which employees can pursue remedial action at the MSPB
Discuss litigation aspects when defending disciplinary employment action
claims
Discuss performance based actions
Discuss issues of proof concerning performance based actions
Discuss general leave issues and leave issues arising under the Family Medical
Leave Act (FMLA)
Discuss disability and reasonable accommodation considerations
What is the problem?

Two major type of actions Federal employees
confront
–
Conduct based actions (5 USC Chapter 75)
–
Performance based actions (5 USC Chapter 43)
DISCIPLINARY ACTIONS
Conduct-based actions

Consist of two categories:
–
Disciplinary actions
–
Adverse actions
What is a disciplinary action?

Examples:*
–
Suspension of 14 days or less
–
Reprimand
* 5 USC 7503(b)
The Agency proposes a disciplinary
action, what next?

You have recourse through agency
grievance procedures
–
Where should I look?
 The grievance procedures are regulated through
Department Administrative Orders
What is an adverse action?


Term of law, not the subjective impression
of an employee
Examples:
–
–
–
Removal
Suspension of 14+ days
Reduction in Pay or Grade

–
Not associated with reclassification
Furlough of 30 days or less
What rights are you afforded at the Agency?

Step 1: The Proposal (Disciplinary & Adverse Action)
–
A proposal is a written notice of proposed action informing you of:





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(1) the charges against you;
(2) the facts supporting the charges against you; and
(3) the fact that you have the right to review the material or evidence the
agency is relying upon in proposing this action against you
Once issued, agency may only take the proposed action against you no less
than 30 days from date of proposal
The agency cannot impose a penalty more severe than the one it proposed,
or based on conduct not contained in the proposed notice.
Cannot use conduct after disciplinary action to support proposed
disciplinary action.*
* 5 USC 7513
* *Joyner v. Dept. of Navy, 57 MSPR 154, 158 n.4 (1993)
Your Rights (cont.)

Step 2: The Reply—Written (Disciplinary & Adverse Action)
–
Your response/defense to the agency’s proposal


–
Disciplinary Action: Approx. 7 days for reply
Adverse Action: Approx. 14 days for reply
Prepare Interim Reply Letter that includes:

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
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(1) Request for information, including copies of materials relied upon by the agency
(2) Request extension - 15 calendar days upon receipt of the requested documents
(3) Your desire to exercise your right to present an Oral Reply
– An employee has the right to present an oral reply, but an affirmative action
you must take to ensure you receive one!
Serve letter on agency’s Deciding Official, with CC to the designated HR Official
within 3 business days of receipt of proposed adverse/disciplinary action.
Purpose of Reply Stage


–
–
The ORAL REPLY is the most important procedural right for
employees facing procedural action
Goal is to humanize the case for the Agency deciding official
Generally easier to mitigate the proposed offense at the
agency level than through litigation
Having an Attorney represent you during both stages of the
Reply is critical.

Your Attorney can explain, in a competent and
formidable fashion, any harmful procedural errors and
affirmative defenses.
Your Rights (cont.)

Prepare Written Reply that should include:
–
–
–

(1) Sworn Declaration rebutting the factual allegations in the agency’s
proposal
(2) Argue Mitigating Factors aka “Douglas Factors”*
(3) Assert any Affirmative Defenses.
Consider the following format for the written reply:
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(1) Introduction
(2) Your Employment Background
(3) Charges & Specifications/Agency’s
Burden
(4) Argument
–
–
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(5) Penalty
(6) Affirmative Defenses
(7) Conclusion
*Douglas v. Veterans Admin., 5 M.S.P.R. 280, 306 (1981)
Mitigating Factors to Consider in Written
Reply - The 12 Douglas Factors
Nature and seriousness of the offense
1.
–
2.
3.
4.
5.
6.
Considered the most important factor.
Employee’s job level and type of employment
Employee’s disciplinary history
Employee’s past work record
Effect of the offense upon the employee’s ability to perform at
a satisfactory level and its effect upon a supervisor’s
confidence in the employee’s ability to perform assigned duties.
Consistency of the penalty with those imposed upon other
employees for the same or similar offenses.
Mitigating Factors to Consider in Written
Reply - The 12 Douglas Factors (cont.)
7.
8.
9.
•
10.
11.
12.
Consistency of the penalty with the agency’s table of offenses.
Notoriety of the offense, or its impact upon the reputation of the
agency.
Clarity of the offense, meaning whether the employee was on
notice of the rule(s) allegedly violated.
Previous notice of leave abuse warranted removal.*
Employee’s potential for rehabilitation.
Mitigating circumstances.
Adequacy and effectiveness of alternative sanctions to deter
such conduct in the future by the employee or others.
* See Fleming v. U.S. Postal Service, 30 M.S.P.R. 302, 308-10 (1986).
Mitigating Factors to Consider in Reply
The 12 Douglas Factors
Are they required?

–
Disciplinary actions?

–
No, but are often included by Agency
Adverse actions

Yes, must be addressed or risk scrutiny at the MSPB
Your Rights (cont.)
Step 4: Decision Letter (Disciplinary & Adverse Action)

–
After both your written and oral reply, the agency
will issue a Decision Letter

Agency does not have a deadline to issue decision, it
may take days to months
Step 5: Appeal rights?
If you are subject to an adverse action, you
may be able to appeal to the Merit Systems
Protection Board to seek redress

–
Who may appeal to the Board?

“Employees against whom an action is
taken.”*
* 5 USC 7513(a)
Who is an “employee”?
–
Competitive service employee with a completed
probationary period


–
All non-Senate approved or SES positions, unless specifically exempted by
statute
Encompasses vast majority of the General Schedule
Excepted service employee not serving a probationary
period with at least 2 years of current continuous service in
the same or similar positions in an Executive agency


Defined as all employees not in the competitive service
Generally, statutory exemptions are policy making in nature
–
Examples:
 Political appointees
 Lawyers
 Foreign service positions
Who is an “employee”? (cont.)
–
Non-competitive service employee BUT a preference-eligible veteran with
at least 1 year of continuous employment in the same or similar position
 Examples of preference eligible veteran
–
Spouses of disabled veterans not able to support their families;
–
Member serving on active duty for a period of more than 180 consecutive days
from January 31, 1955, and before October 15, 1976;
–
Member serving on active duty during the period beginning on August 2, 1990, and
ending on January 2, 1992;
–
Member serving more than 180 consecutive days beginning on September 11,
2001 to the last date of Operation Iraqi Freedom;
–
“Disabled veteran” is an individual who:

Has served on active duty in the armed forces;

Has been separated under honorable conditions; and

Can present the existence of a service-connected disability
What about probationary employees?


General rule: Probationary employees are conferred no
statutory rights to appeal to the MSPB.
–
May appeal based on claims that the adverse action
occurred due to:

Partisan political reason;

Marital status
Probationary employees may seek redress under EEO,
Whistleblowing law, USERRA, VEO appeals.
What is an “action”?


“Action” means adverse actions
Can disciplinary (non-adverse) actions be appealed to the Board?
–
Generally, no.

Exceptions include claims arising under:
–
Whistleblower Retaliation

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Discrimination based on Military Duty

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Complaint first filed with the Office of Special Counsel
(OSC)
Uniformed Services Employment and Reemployment
Rights Act (USERRA) violation appeal straight to MSPB
Alleging Discrimination

Discrimination claims filed with agency EEO counselor
You are a covered employee subject to an
adverse action, what next?

Step 6: MSPB Appeal
–
Filing: Appeal must be filed within 30 calendar days from the
effective date of the Decision Letter or Adverse Action

–
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Acknowledgement Order: MSPB notifies you that your appeal has
been received and will be processed often within 15 days of filing
Discovery: Time period in which you file “Discovery Requests” and take
depositions to gather additional evidence in support of your appeal


–
Appeal form is found online at www.mspb.gov and may be filed online as well
You must timely respond to the agency’s requests as well
If the agency fails to respond to your requests you may file a “Motion to Compel”
asking the Judge to order that they comply
Prehearing Submission: Submission includes facts of your case,
witnesses you want called and evidence you want to introduce at trial

Prehearing conference call will follow and the MSPB administrative judge (AJ) will
decide to allow or reject your requests
Hearing
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What must the agency prove to sustain its charges against me?
– The agency’s action must be taken with “such cause as will
promote the efficiency of the service.”*
 Difficult to ascertain but the standard is constitutional
despite claims of vagueness and over breadth.**
* 5 USC 7503(a)
** Civil Service Commission v. National Association of Letter
Carriers, 413 U.S. 548, 578-579 (1973)
“Efficiency of the Service”

Adverse actions generally promote the efficiency of the service
where:
– Employee failed to accomplish his duties satisfactorily.*
 There is no requirement that the employee violate an
explicit agency procedure.**
* Hatfield v. Dept. of Interior, 28 MSPR 673, 675 (1985)
** Shepel v. Dept. of Commerce, 68 Fed. Appx. 200, 201 (Fed. Cir.
2003)
Proving its case

Agency must show the underlying conduct occurred
–
–
Mere suspicion is not enough
All facts are reviewed without deference to the Agency (de
novo)*
* 5 USC 7701(c)
Proving its case (cont.)


Agency must prove all essential elements of the charged
offense by preponderant evidence
–
Preponderance of the evidence means evidence of greater
weight or more credible and convincing.
Because the agency needs to prove all elements, it often
charges employees with crimes that lack an intent element.
–
Why? Intent is difficult to prove.
Proving the case (cont.)

Nexus
– Agency must prove that there is a sufficient nexus (casual
connection) between the alleged conduct and impact of the
efficiency of the Federal service.
 For example, off-duty conduct is considered more
tenuous and difficult to meet the nexus requirement.*
* Lachance v. Merit Sys. Prot. Bd., 147 F.3d 1367, 1372-73
(Fed. Cir. 1998)
Once proven, then what?

Once the agency proves its case, the employee may show:
– A procedural error occurred; or
 Examples:
– There was a harmful error in applying the agency decision
 Examples:
 Not affording employee proper reply rights
 Placing an employee on “emergency suspension” without
procedural rights.*
 No proposed removal issued. **
– Decision is not in accordance with the law
*Cuellar v. USPS, 8 MSPR 624 (1981)
*Benjamin v. USPS, 26 MSPR 670, 671 n.2 (1985)
Once proven, then what? (cont.)
–
Employee may set forth an affirmative defense
 Examples:
– Action was in violation of the merit system principles
– Action was based on unlawful discrimination (I.e. race, color,
religion, sex, national origin, age, disability, marital status,
and/or political affiliation.)
But the penalty is too harsh?

The MSPB will modify the agency action only in two circumstances
–
Outside the bounds of reasonableness; or
–
Agency failed to take into account mitigating factors.
 Analyzed under the Douglas factors.
– If the agency fails to take into account all relevant
factors, the agency’s penalty is given less deference.*
* Littledyke v. Dept. of Agric., 6 MSPR 430 (1981)
Mitigation measures implemented
by the MSPB


If the Board determines that the Agency mischaracterized
evidence to support its charges, it may be subject to mitigation.
If the Board sustains fewer than all the charges presented against
the employee, the penalty may be mitigated.
Common types of charges
•
Conduct unbecoming of a Federal employee
Conduct which was improper, unsuitable or detracting
from one’s character or reputation.
•
•
Offenses as broadly stated as “conduct unbecoming a
federal officer” are reviewed and sustained by the
Board.*
The agency is entitled to use a general charge such as
conduct unbecoming a federal employee, which
contains no specific intent element
* See, e.g., Miles v. Dept. of Army, 55 MSPR 633, 637 (1992)
Common types of charges (cont.)

Misuse of leave
-

Removable offence
Reasons must be valid at time leave is requested.*
Misuse of government property (e.g. credit card abuse,
misuse of computer/blackberry)
-
The Board distinguishes misuse and theft of government property.
An agency need not prove intent to sustain the charge of misuse of
government property.**
Internet is treated differently and removal is often upheld.***
* See Archuleta v. Dept. of Air Force, 16 MSPR 404, 407–08 (1983).
** See Lewin v. Dept. of Justice, 74 MSPR 294, 297 n.2 (1997).
*** See e.g. Lemmon v. Dept. of Agric., 23 MSPR 506, 513 n.6 (1984).
Common types of charges (cont.)
Misuse of government time

–
–
Generally discipline is imposed in the same manner as unauthorized
absences
Employee may be charged with AWOL when conducting private
business on duty. *

Issues concerning LWOP:
–
May be removed for LWOP if:
•
The employee was absent for compelling reasons beyond his control so
that the agency’s approval or disapproval of leave was immaterial;
•
The absences continued beyond a reasonable time, and the agency
warned the employee that an adverse action could be taken unless the
employee became available for duty; and
•
The position needed to be filled by an employee available for duty on
a regular, full-time or part-time basis. *
* Mitchell v. Dep’t of Defense, 22 MSPR 271, 273 (1984).
Common types of charges (cont.)
• Lack of Candor
-
Board tells us that “making statements that demonstrate a lack
of candor clearly constitutes actionable misconduct.” *
To prove the charge, circumstantial evidence is used to
establish intent.
-
Suspension for 45 days was appropriate for off-duty use of
marijuana by an air traffic controller who was charged with not
responding honestly during an investigation into use of the drug.
**
* Crickard v. VA, 92 MSPR 625, 632 ¶ 18 (2002).
** See Moen v. Dept. of Transp., 28 MSPR 556, 560 (1985).
Common types of charges (cont.)
Sexual harassment (types of charges/standard)
For disciplinary action under 5 USC Chapter 75, the charged
conduct does not necessarily have to rise to a violation under
Title VII of 1964 Civil Rights Act unless the operative Agency
policy explicitly references the Act.*
How is it defined?
•
•

Two types:
–
–
Quid pro sexual harassment; and
•
Some employment benefit conferred in exchange for sexual favor or
consideration
•
Fairly straightforward to prove
Hostile work environment sexual harassment
* See Marshall v. USPS (Fed. Cir. 1987).
Common types of charges (cont.)
Hostile Work Environment Sexual Harassment
– Legal Test:
Sexual conduct that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive
working environment.

Subjective and objective prongs required:
–
For objective test, environment matters:

The environment at the time the incident(s) occurred are taken into
account. *
•Grubka v. Dept. of Treasury, 858 F.2d 1570 (Fed. Cir. 1988) (Supervisor
kissing a subordinate at a Halloween party was frivolous as it occurred away
from the workplace at a private event.)
Common types of charges (cont.)
If proven, what are the consequences as far as
disciplinary action?

-
-
Rebuttable presumption that a proven claim of hostile work
environment sexual harassment affects the efficiency of the
service.
Board often holds that it is cause for removal. *
*See Batts v. Dept of the Interior, 102 M.S.P.R. 27 (2006)
PERFORMANCE ISSUES
Chapter 43 Actions
Does the Agency need to inform you of
your poor performance?

–
The law does not require an agency to warn
an employee that failure to improve will result
in removal or to inform the employee of what
action it will take.*
*Egleberry v. Dept. of Air Force, 27 MSPR 217, 218 (1985).
General Points


–
Performance actions omprise a small portion of the MSPB docket
If any real or perceived performance issues are well documented, actions often withstand
Board scrutiny
Why?

Board acknowledges deference towards Agency mission
–
“Normally the Board ‘should give deference to the judgment by each
agency of the employee’s performance in light of the agency’s assessment
of its own personnel needs and standards.’”
–
Performance is often subjective despite attempts to write objective criterion

Lesser burden of proof for Agency to prove case
–
Substantial evidence

Evidence that might accept as adequate to support a conclusion, even
though other reasonable persons might disagree.

The Agency need not consider, and Board will not consider, mitigation in
performance cases
–
The Action will either be sustained or it will not
*Lisiecki v. MSPB, 769 F.2d 1558 (Fed. Cir. 1985)
Performance issues
What governs?

–
5 USC Chapter 43

An agency may take action when an employee allegedly
demonstrates “unacceptable performance”
–
Definition:
“[U]nacceptable performance” means
performance of an employee which fails to meet
established standards in one or more critical
elements of such employee’s position. *
* 5 USC § 4301(d).
What actions can be appealed?
Chapter 43 allows appeals over two penalties:

Removal

Demotion
–
Demotion defined:

A charge placing an employee
–
–
To a lower grade
To a position with a lower rate of pay




Includes within grade increases (WIGI)
Must be satisfactory for WIGI eligibility
Cost of appeal dwarfs the WIGI increase
If appeal is successful, however, it may serve as a defense towards future
allegations of unsatisfactory performance
Requirements to Remove or Demote
Employees Generally
–
Agency must*:

Have an approved performance appraisal system;
–

OPM must approve but is rarely at issue
Communicate the written performance standards and “critical
elements” of an employee’s position to the employee at the
beginning of the appraisal period;
–
A performance standard means the management-approved
expression of the performance threshold(s), requirement(s), or
expectation(s) that must be met to be appraised at a particular level
of performance. A performance standard may include, but is not
limited to, quality, quantity, timeliness, and manner of performance.**

Must be in writing
*Martin v. FAA, 795 F.2d 995, 997 (Fed. Cir. 1986)** 5 CFR 430.203 (2010)
Requirements to Remove or Demote
Employees Generally (cont.)
–
Agency must:


Warn of inadequacies in “critical elements” during the
appraisal period, and;
Counsel and afford an opportunity for improvement
after proper notice of inadequacies
Agency’s burden in establishing
performance cases

Agency’s burden is substantial evidence:
–
–
Lesser burden and more deferential to agencies than preponderant evidence.
In litigation, an agency is required to demonstrate that the standards it relies on are
reasonable, realistic, and attainable. *
* Johnson v. Dept. of Army, 44 MSPR 464, 466–67 (1990).
Performance Standards Reviewed

–
Agency must meet all of following elements by substantial evidence
The performance standards are valid;
Critical elements may be challenged if they are too subjective in
nature.
If an appellant raises the issues of objectivity of performance
standards. the issues must be resolved before the merits of the
agency’s charges can be decided.
Performance Notice

–
The employee’s performance was unacceptable in at least one
critical element.
There is no requirement that an official appraisal be issued to
an employee in advance of a performance-based action.


–
Board does not allow appellant to challenge determination that
employee’s performance was unsatisfactory before PIP
Performance during PIP is operative query
However, employee must be noticed of specific deficiencies
before PIP period
Reasonable Opportunity to Improve
Employee must be afforded a reasonable opportunity to improve:
•
–
–
The right to a meaningful opportunity to improve is one of the most
important substantive rights in the entire Chapter 43 performance
appraisal framework.
Failure to communicate the opportunity to improve violates a substantive
right
Reasonable Opportunity (cont.)

What constitutes a reasonable opportunity depends on:
–
Nature of the duties and responsibilities of the position,
–
Performance deficiencies involved, and
–
Amount of time sufficient to enable the employee to
have an opportunity to demonstrate acceptable
performance.
Reasonable Opportunity to Improve (cont.)

Reasonable length is not defined:




No government-wide rule of regulation governs
Three workdays was insufficient.*
Two weeks between notice of unsatisfactory performance and demotion
was not a reasonable opportunity.
Thirty days is generally acceptable**
*Hailey v. Dept. of Agric., 26 MSPR 114, 117 (1985)
**Wood v. Dept. of Navy, 27 MSPR 659 (1985)
The PIP
Generally, the Agency satisfies the
reasonable opportunity requirement through
the Performance Improvement Plan (PIP)
•
–
Need only be unsuccessful or minimally successful in
one critical element to fail the PIP.
The PIP (cont.)

How must it be drafted?
–
–


Requirements must be reasonable, realistic, and attainable.
May be raised and reviewed sua sponte by the
Administrative Judge
Must provide affirmative assistance to the employee
during the PIP
Once operating under a PIP, an agency cannot change
the standards without notifying the employee
The PIP (cont.)

What is reasonable, realistic, and obtainable

Demanding standard is not necessarily an unreasonable one.
•
Absolute standards critically reviewed
•
Absolute standards defined:
–
One single incident of poor performance will result in an
unsatisfactory rating as to a critical element of a position.
•
Example: A secretary is required to answer the phone 100% of
the time when on duty.

Absolute standards are viewed in totality:
•
Example: PIP stated work products contain “no more than three
typographical errors and no errors in final form.”
•
This is an absolute standard

When absolute standards are generally upheld:
•
Where performance involves death, injury, breach of security or
great monetary loss
After the PIP Period
What happens following a failed PIP?
• Proposal for:
- Demotion; or
- Removal
• More Stringent Requirement for Removal
• In performance-based actions, an employee may be
removed only for unsatisfactory performance, not for
minimally acceptable performance.
• Retroactive aspect
• If at any time during the performance cycle where an
employee was issued a PIP, his/her performance becomes
unacceptable, the employee may be reduced in grade or
removed without further notice of deficient performance.
• May reissue a new PIP
Procedural Requirements
30 days advance notice of the action with specific
instances of poor performance

–
Must specify what particular performance standards that were
failed during PIP failed to supervise employees in an adequate
manner

Held as insufficiently specific:
–
–



“failed to insure adequate program development,”
“incapable of interpreting orders”
Reasonable time to answer orally and in writing
Right for attorney representation
A written decision
Other issues

Now that we’ve discussed Conduct and
Performance Based Actions, let’s discuss the
issues concerning:
Medical Leave Benefits
– Leave issues generally
– Disabilities and Requesting Reasonable
Accommodation
–
Medical Benefits Generally
•
•
The Federal Employees Heath Benefits Program
applies to all Federal employees, retirees, and their
survivors
http://www.opm.gov/insure/health/
Sick Leave
–
For absences in excess of three days an agency may
require a medical certificate or other administratively
acceptable evidence. *
* See http://www.opm.gov/oca/leave/html/sicklv.asp.
Employee unable to request leave


An agency must grant sick leave to an employee who
has provided the agency with administratively
acceptable evidence that she is incapacitated for the
performance of her duties due to illness or injury.
If the employee fails to provide such documentation and
is charged with AWOL due to such absence, and later
provides administratively acceptable evidence
supporting sick leave, the agency may not remove an
employee on AWOL grounds
FMLA


The statute permits a qualifying employee to take a maximum of 12
administrative workweeks of leave during any 12–month period.
Generally, an employee is entitled to the twelve weeks if:
-



Birth of a son or daughter
Placement of a son or daughter with the employee for adoption or foster care.
Care for the spouse, or a son, daughter, or parent, of the employee, if such
spouse, son, daughter, or parent has a serious health condition.
May be taken intermittently if medically necessary and approved by
the agency.
Because of a serious health condition that makes the employee unable
to perform the functions of the employee’s position.
Must be supported by medical documentation.
Privacy Act Implications

–
The Agency may refuse to provide documents pertaining to appellant because
of privacy concerns of another individual
What information is forbidden under the Act?

Forbids agencies to disclose information “to any person, or to another
agency” without the consent of the individual
–
Requirements:

Part of Agency “record” and is indexed in a retrievable
manner either by the individuals name or other identifying
particular
Privacy Act Implications (cont.)

–
For purposes of employment litigation, may be subject to the “routine use”
exceptions, allowing disclosure:
Routine use defined:

A routine use is defined as “the use of such record for a purpose which is
compatible with the purpose for which it was collected.”
5 USC § 552a(a)(7) (1994)
Privacy Act Implications
The Agency publishes its governing exceptions

Published in Federal Register
–
Common Examples:
–
Authority to issue documentation upon judicial subpeona
–
“provid[ing] records and information to the…Merit Systems Protection
Board…for the purpose of properly administering Federal Personnel
Systems in accordance with applicable laws, Executive Orders, and
regulations.”
–
“disclose relevant, nonprivileged information to a court, magistrate, or
administrative tribunal, including…disclosure to
–
opposing counsel or witnesses in the course of civil discovery.…”
If the Agency’s Privacy Act objection is sustained, the Agency must provide appellant
the most current known address of the individuals for purposes of obtaining permission
to use records.
Breach requires a showing:
Of harm by the individual whose information was disclosed;
Act was intentionally or willfully committed



–
–
Voluntary Leave Bank Programs



Agencies may establish voluntary leave banks
If established, operated by agency leave bank board
Who is eligible?
-
Employee experiencing a personal or family medical
emergency
Voluntary Leave Bank Programs (cont.)

Requirements:



Must exhaust all his/her own available paid leave
Employees must apply
Applications must include:
–
–
–
Name, position, title, grade or pay level of the applicant
The reasons leave is needed, including:
•
Nature, severity, and anticipated duration of the medical
emergency
•
Certification from one or more physicians
Any other information needed by the leave bank board.
Voluntary Leave Bank Program (cont.)
Requirements continued

–
–
The contribution cannot be less than the amount of annual
leave he/she accrues per pay period
Any donor may request the leave be designated to a
specific leave bank member
I am eligible to participate, is my situation
covered?
What is a medical emergency?

–
Defined liberally
–
A medical condition that is likely to require the
employee to be absent from duty for a prolonged
period of time that would result in a substantial loss of
income.
•
•
•
•
Includes coverage of a family member’s condition
Constitutes a wide range of relationships including spouse;
parents; children; brothers; sisters; grandparents; foster parents
and children; etc.
Agency may require proof of the relationship
A substantial loss of income is at least 24 hours of duty time for
a full-time employee.
Advance sick leave
How much?

–
May be eligible for 240 hours (30 days), if:
•
•
•
•
–
An employee incapacitated to perform;
Serious health condition of employee or family member;
Jeopardize others to exposure of communicable disease; or
Care of a service member if utilizing FMLA provisions.
May be eligible for 104 hours (13 days), if:
•
•
Employee receiving medical treatment;
Provide care for incapacitated family member
Advanced Annual Leave
How much?

–
At its discretion, an agency may advance
annual leave to an employee in an amount not
to exceed the amount the employee would
accrue within the leave year.
When making leave decisions, keep in
mind accrual rates
Accrual rates of annual leave

Less than 3 years of service
–
One half day per pay period

Three years but less than 15
–
Six hours a pay period

15 or more years of service
–
One day per pay period

SES
–

8 hours a pay period
Accrual rates for sick leave

–
4 hours per pay period
Be mindful of use or lose





A leave year begins on the first day of the first full biweekly pay
period in the calendar year.
A leave year ends on the day immediately following the first full
biweekly pay period following the calendar year.
Generally employees can carry over a maximum amount of 240 hours
of leave.
If he/she accrues more than the maximum allowable leave to carry
over to the following leave year, additional leave is considered use or
lose.
All additional leave will be forfeited
Issues Concerning
Reasonable
Accommodation
Qualified Individual with a Disability
• What is it?
-
The term “qualified individual with a disability” means an individual
with a disability who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such
individual holds or desires.
-
Qualified individual with a disability means an individual with a
disability who satisfies the requisite skill, experience, education and
other job–related requirements of the employment position.
What is a disability under the
Rehabilitation Act?
• The term ‘disability’ means, with respect to an
individual
-
A physical or mental impairment that substantially limits one
or more major life activities of such individual;
-
A record of such an impairment; or a record of an
impairment that, when active, substantially limited a major
life activity; or
-
Being regarded as having such an impairment
What is an accommodation?
•
“In general, an accommodation is any change in the work
environment or in the way things are customarily done that
enables an individual with a disability to enjoy equal employment
opportunities.” 29 CFR Part 1630 app. 1630.2(o) (1997).
•
What is the agency required to do?
–
An employer is not required to eliminate an essential
function of a position, lower production standards either
qualitatively or quantitatively, or provide personal items
needed for daily activities on and off the job.
* See Technical Assistance Manual, Disability Discrimination, pp. at 767–68.
Interactive Process
• “[I]nteractive” process that requires equal participation
on the part of the agency and the employee
• Executive Order 13164 requires every federal
agency establish written procedures for processing
reasonable accommodation requests
Failure to Engage in the Interactive Process
• The agency’s failure to engage in the interactive
reasonable accommodation process can have two
results:
•
The agency may be found liable for failing to provide reasonable
accommodation if the complainant is a qualified individual with a disability
who was entitled to accommodation; or
•
If the failure to accommodate results in a loss of pay or benefits, the agency,
in addition to providing accommodation, will be required to reimburse the
complainant for the loss as part of the make – whole relief.
• The employee’s failure to participate in the interactive
process can relieve the agency of any liability for
failure to make reasonable accommodation
Notice Requirement
•
Who is responsible?
• Generally, the employee or his/her family member, friend, health
care professional or representative.
•
Exceptions:
•
An employer should initiate the reasonable accommodation interactive process
without being asked if the employer:
1. Knows that the employee has a disability,
2. Knows, or has reason to know, that the employee is experiencing
workplace problems because of the disability, and
3. Knows, or has reason to know, that the disability prevents the employee
from requesting a reasonable accommodation.
•
There is no requirement that the request be in writing. Although the
employer may seek to have the employee make a request in writing or fill
out a form, the employer cannot ignore the original request for
accommodation.
Medical Documentation
•
Generally, the content of Office of Personnel Management on
“Medical Determinations Related to Employability” governs (5 CFR
Part 339)
•
If the documentation is inadequate, the agency may request additional
information. If the complainant refuses to provide that information, the
agency is not liable for the breakdown in the interactive process. *
•
An employer, in response to a request for reasonable accommodation,
cannot ask for documentation that is unrelated to determining the
existence of a disability and the necessity for an accommodation.
•
The documentation must come from an appropriate health care or
rehabilitation professional.
•
In some instances, the disability and its limitations will be so obvious that
no medical documentation is required.
* See Madison v. Secretary of Defense, 03A40105 (2004).
Affirmative Duty
• Affirmative duty of agency to
provide effective reasonable
accommodation
Duration of Time for the
Approval Process
• Must be quickly addressed by Agency,
delay could result in liability
Q&A