Ask FELTG: Can employee use sick leave for family member with health condition without invoking FMLA – and then PPL?

May 24, 2022

We receive a lot of questions about leave through Ask FELTG, and each situation seems to have its own unique challenge. The subscriber who asked this question further explained that the hypothetical employee was the father of a newborn.

FELTG Senior Instructor and resident Federal leave authority Barbara Haga jumped in to answer this one, and suggested we start first with the basics.

FMLA is a separate entitlement apart from sick leave. It doesn’t limit in any way an employee’s ability to use sick leave. Use of sick leave doesn’t detract from the number of hours in the FMLA or PPL (Paid Parental Leave) entitlement.

For family care, there are two sets of limits on how much leave the employee could use. These numbers assume an 80-hour pay period.

1. An employee can use up to 13 days or 104 hours in a leave year for care of a family member with a non-serious condition, such as seasonal flu, colds, allergies, etc.

2. An employee can use up to 480 hours in a leave year for care of a family member with serious health condition, such as cancer, stroke, or heart attack. Pregnancy and childbirth are considered serious health conditions. The leave year maximum is 480 hours, so any use from the 104-hour category must be deducted.

Barbara continued:

For use of family care sick leave, the employee must be caring for the individual with the medical condition. If the father in this scenario wanted to use sick leave, he could do so to care for the mother during her recuperation period. That time could not be used for care of a healthy child. The mother likely would have a 6- or 8-week recovery period, but the question would be for what portion of that period she would require care from the father. The agency has the right to ask for medical documentation to establish the need for care because this is a serious health condition. See 5 CFR 630.405(c).

Here are two scenarios. We’re using rough dates rather than counting out the actual hours as you would obviously have to do. These scenarios assume the father won’t exceed the limit due to any other use of family care sick leave at any other point in the leave year.

The mother’s due date is April 1, 2022. The father requests six weeks of sick leave to care for the mother immediately after the birth of the child.

Scenario 1. Medical documentation is requested, and the health care provider indicates the mother would require physical care for three of the six weeks. The father could use sick leave from April 1 to 22. He could invoke FMLA to begin the next workday (Apr 25) for 12 weeks and substitute 12 weeks of PPL. This would extend through roughly July 25. Total paid time off is 15 weeks.

Scenario 2. This time the health care provider indicates the mother will need care for the full six weeks. The scenario would change as follows: The father could use sick leave from 4/1 through roughly 5/16. The father could invoke FMLA with PPL substitution for 12 weeks beginning 5/17 which would run through roughly 8/17. Total paid time off is 18 weeks.

For guidance on how to handle all absence-related challenges, including those related to COVID-19, join us for FELTG’s Absence, Leave Abuse & Medical Issues Week June 5-9, 2023. Classes run from 12:30-4:30 pm ET every day. Register by May 26 for Early Bird pricing.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: If an employee with a disability can perform his job at the worksite, why would telework as a reasonable accommodation be necessary?

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It wouldn’t be necessary, though the agency could still choose to grant telework as the accommodation if it wanted to. EEOC guidance suggests that the employee’s preference on accommodation should be considered, but ultimately the agency gets to choose the accommodation. See Complainant v. Army, EEOC Appeal No. 0120122847 (2014); Jordan v. Secretary of Navy, EEOC Appeal No. 0120110907 (2012)

The only time an agency must grant telework as an accommodation is if:

1. The essential functions of employee’s job can be performed from home,

2. There is no other effective accommodation that would allow the employee to perform the job within their medical restrictions, and

3. Granting telework is not an undue hardship on the agency.

EEOC Fact Sheet: Work at Home/Telework as a Reasonable Accommodation; see also Dahlman v. CPSC, EEOC Appeal No.0120073190 (2010); Lavern B. v. HUD, EEOC Appeal No. 0720130029 (2015).

There may be times when an agency chooses to grant telework even though there might be an effective accommodation available at the worksite. For example, let’s say an employee has irritable bowel syndrome. The agency could provide the employee with a workstation close to the restroom, which would be an effective accommodation.

However, taking into account the fact that the restroom is not single-use and the fact that the employee needing to use the facilities in front of the employee’s coworkers might cause embarrassment, the agency might choose to grant the employee telework instead.

For more guidance, join Attorney at Law/FELTG Instructor Ann Boehm on May 11 for Managing Post-pandemic Reasonable Accommodation Requests and Medical Documentation, the second part of our three-part webinar series Navigating the Return to the Post-pandemic Federal Workplace.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG Tackles Calendar Days in Suspensions and Holidays in FMLA and PPL

March 8, 2022

Sometimes to understand Federal employment law, you need an old-fashioned print calendar by your side, as these two recent Ask FELTG submissions illustrate.

We know that suspensions must be served as calendar days, not workdays, but how can we ensure that a suspension maximizes the workdays covered? Can we require that a suspension begin on a Monday so that a, say, 6-day suspension covers 5 workdays?

In the decision letter, the Deciding Official should state the specific date(s) the suspension will be effective, so beginning a suspension on a Monday is no problem at all as long as the letter indicates so.

For expert guidance on all things related to discipline, as well as performance and whistleblowing, register for one or more days of FELTG’s MSPB Law Week, held virtually March 28 – April 1. Register here.

Meanwhile, another reader asked about holidays while on Paid Parental Leave.

I read your post Ask FELTG: Are holidays counted as hours for Paid Parental Leave? Someone recently advised me that at my agency FMLA only gives us 12 administrative weeks and that they are counted towards holidays. When I returned from my PPL, I lost three days of PPL to holidays during my leave. What is the next step in addressing this? Is there an OPM hotline?

We huddled with FELTG Senior Instructor and FMLA expert Barbara Haga to offer further guidance to our reader.

FMLA (and, thus by extension, PPL) is only charged for days when employees are scheduled to work. Holidays do not count toward the 12-week entitlement if the employee is not scheduled to work on Federal holidays. Here is the regulation:

5 CFR 630.1203(e)

(1) Family and medical leave under this subpart is available to full-time and part-time employees. The entitlement to a total of 12 administrative workweeks of leave in connection with leave granted under paragraph (a) of this section must be converted to hours or days, as provided in paragraphs (e)(2) and (e)(3) of this section. Leave under paragraph (a) allows an employee to be absent during the employee’s scheduled tour of duty established for leave charging purposes. Such leave is not applied to days designated as holidays and other nonworkdays when the employee would be excused form duty. [Emphasis added.]

OPM has no role in adjudicating FMLA claims, and as far as we know they don’t have a hotline to report such concerns.

If showing this to the HR folks does not resolve the issue, an employee would have the ability to raise this through the relevant grievance procedure. If they are in a bargaining unit, they would file under the negotiated procedure if the CBA allowed it. If not covered by a bargaining unit, then the employee would use whatever administrative grievance process their agency provides.

Meanwhile, mark your calendar now for FELTG’s Absence, Leave Abuse & Medical Issues Week June 13-17.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Is an employee covered under FMLA when his adult child has a temporary inability to perform a daily activity?

January 31, 2022

Here’s a hypothetical scenario posed by a FELTG student: An adult child is involved in a car accident. The adult child will be undergoing a lengthy recovery period and, during that time, may not be capable of performing one of the activities of daily living (ADL). The prognosis is that eventually she will regain all functionality.

Is the employee/parent eligible to take FMLA for this adult child in this situation? Does the inability to perform an activity of daily living have to be permanent or could it be a temporary condition and still be covered?

FELTG’s answer:

To answer your question generally, in order to be eligible, the son or daughter (as defined by 5 CFR 630.1202) must be unable to perform at least three activities of daily living identified in the regulations, not one.

The requirements are that:

  • Son or daughter over 18 must first have a disability to be covered
  • Beyond that must be incapable of self-care because of the disability – requires active assistance or supervision of the parent

If there is a complete recovery, the parent may not have FMLA eligibility any longer. The adult son or daughter would have to continue to meet the definition of disabled in addition to the need for care for there to be continued coverage for the parent under FMLA.

Looking for more FMLA guidance? Join Barbara Haga this Thursday for the 90-minute webinar Deconstructing FMLA: Entitlement, Notice, and Medical Certification.

Have a question related to federal employment law? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: How do you know if an employee really has PTSD and, if so, how do you accommodate it?

November 29, 2021

Unfortunately, there is a bit of skepticism in the workplace about Post-Traumatic Stress Disorder (PTSD), as demonstrated by this question received in a recent class taught by FELTG Instructor Shana Palmieri, LCSW.

PTSD is classified as an anxiety disorder that changes the body’s reaction to stress, affecting stress hormones and specific parts of the brain. It’s much more than an individual’s reaction to fireworks and other loud noises. “The interactions that trigger PTSD symptoms can be subtle and difficult to understand for individuals who have not had the experience themselves,” Shana explained.

Some potential manifestations could be avoidance of trauma-related stimuli, exaggerated self-blame, social isolation, difficulty connecting with others, irritability, difficulty sleeping, fatigue, and difficulty concentrating.

A quick recap of the reasonable accommodation process: The employee making the accommodation request must show that he is a qualified individual with a disability, and needs an accommodation in order to successfully perform the essential functions of the job. From there, the agency is required to accommodate the employee unless doing so would cause an undue hardship, or no accommodation is available.

Just because the employee’s symptoms don’t mirror your perceptions of PTSD doesn’t mean they’re not real. Follow your agency’s reasonable accommodation protocol and engage in the interactive process with the employee. The specific reasonable accommodation will depend on the employee’s symptoms, but could include a modified work schedule, telework, increased privacy in the workplace, apps for anxiety and stress, or a white noise machine, just to name a few.

For more detailed information on PTSD and other employee mental health challenges, join Shana on December 9 from 1-3 pm ET as she teaches Managing Employee Mental Health Challenges During and After the COVID-19 Pandemic. See below for more details on the program.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: The difference between vaccine “exemptions” and “exceptions” and do such requests relieve the Federal employee from meeting the vaccine deadline?

November 1, 2021

Q: We have seen the words “exemption” and “ exception” used in connection with the vaccine mandate. Would you explain the difference between the two?

A: Functionally, there’s no real difference – employees are asking for the reasonable accommodation of an exemption to vaccination mandate or an exception to the rule that employees must be vaccinated. It’s two different ways of addressing the same issue.

Q: If someone has submitted a vaccine exemption request and a decision is not made close to or after the deadline to get vaccinated for COVID-19, does the exemption request relieve the Federal employee from meeting the vaccine deadline until a decision has been made? 

A: Yes, our understanding based on recent Safer federal Workforce Task Force guidance is that if an employee has a pending reasonable accommodation request for disability or religious exemption, the vaccine deadline is extended. Of course, in the interim, it is appropriate to continue safety protocols such as masking, distancing, teleworking, and testing.

Join FELTG for these upcoming vaccine-related training events:

November 3: The Exemption Proves the Rule: Reasonable Accommodation, Discipline, and the Vaccine Mandate

November 17: Are You Ready for the Last-minute Requests for Vaccination Exemptions?

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: What penalty is appropriate for an employee who untruthfully claims a supervisor said something inappropriate?

September 28, 2021

In this hypothetical question posed by a FELTG reader, a bargaining unit employee (Employee A) reported that a non-bargaining unit employee (Employee B) told another non-bargaining unit employee (Employee C) that their mutual supervisor said Employee C was “attractive.”

The FELTG reader said that such a conversation never took place and considered it slander against the supervisor. And based on recent interactions, it appears that this “slander” made it out to the rest of the staff.

The questioner wrote:

Given the gravity of the misconduct, and the ripple effect it could cause, and may have already started (sexual harassment complaints, lowered morale, strain on working relationships, damage to supervisor’s career) would a suspension be recommended, and a letter of reprimand? What if Employee B is also facing a Letter of Counseling for other inappropriate comments to other employees?

In FELTG training, you stated that a suspension is not a deterrent to misconduct, and that GAO supports this. Given that there are two victims and other affected parties in this hypothetical scenario, what would be the recommended penalty?

There is a lot going on here, and as a training company we can’t give legal advice to this specific scenario. We’d suggest that the supervisor contact the Labor/Employee Relations specialist or an OGC attorney to work through the problem. However, we can speak to the principle in general.

If an agency supervisor is considering discipline for Employee B’s conduct, then there would need to be some type of inquiry or investigation so the agency could determine whether there was a preponderance of the evidence that the employee violated a workplace rule or expectation. [Editor’s note: Perhaps the most challenging investigations involve harassment claims. Join FELTG President Deborah Hopkins and FELTG Instructor Katherine Atkinson for Conducting Effective Harassment Investigations October 4-6. Classes run from 12:30 pm – 4 pm ET each day.]

Evidence could be from personal observation, copies of emails from people complaining about the rumors, statements from other people who were told the rumor, video recordings, or things like that. The evidence gathered during the inquiry will also help the supervisor determine the appropriate penalty using the Douglas factors.

The penalty factors need to be considered independently for this employee and this act of misconduct, and OPM regulations say that the proposing and deciding officials are responsible for proposing and ultimately determining the appropriate penalty. There is not one firm answer we can give, such as “a reprimand is too weak” or “a removal would be justified” because we are not privy to the Douglas factors in this employee’s case. However, supervisors get broad discretion to determine what is appropriate based on the factors such as the nature of the offense, the employee’s performance, trust and confidence in the employee, and more.

The bottom line: Whatever penalty the proposing (and ultimately deciding) official deems appropriate, and can justify through the Douglas factors, should be legally defensible. We have seen other cases involving similar misconduct where agencies have chosen to reprimand, or suspend, or remove – and the entire range has been upheld based on the penalty factor justification.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Performance Isn’t About Can’t Do vs. Won’t Do

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By William Wiley, September 7, 2021

Below is an email we received from a FELTG student, lightly edited for space and context, followed by our FELTG answer.

Dear FELTG,

I attended your MSPB Law Week in person last year just before everything was shut down due to COVID. I recall your discussion about performance management, and you made a statement that I swear I wrote down but cannot find in my notes. I was wondering if you might be able to reiterate. You said something along the lines of “Performance vs. conduct is not a matter of can’t do and won’t do.” This can’t vs. won’t is something I was taught as a young ER practitioner some years ago. However, your explanation was MUCH better!

Thanks in advance.

And the response:

Ah, the old “can’t do vs. won’t do.” Has a nice ring to it. The reason that FELTG teaches that this is an incorrect concept is based in law and, unfortunately, the law doesn’t always have a nice catchy rhythm.

If we read the statute that lays out the procedures for taking a performance-based removal (codified at 5 USC 4303), we don’t see anything that speaks to volition. Therefore, the willfulness of an employee’s unacceptable performance is not a matter of law with which we need to be concerned when initiating a performance removal. We don’t have to care whether the employee says, “Boss, I refuse to work that hard” or “Boss, I can’t work that hard.” If the employee is not performing at a level that the supervisor sets as the minimum level of performance, we can initiate a 432-performance action.

Being able to initiate a 432-performance action without concern for can’t v. won’t is important for several reasons:

  • It’s one less case element we have to prove on appeal. It gives the employee one less thing to argue with us about. Reducing arguments is a very desirable outcome.
  • 432-performance actions are a fast, efficient procedure for dealing with a documented non-producing employee. We can initiate a 432 action today by giving the employee a notice that specifies the performance elements being failed, and then propose the employee’s removal 31 days from now if performance does not improve to the minimal level. In contrast, a 752-misconduct action (a reference to 5 USC Chapter 75 adverse action removal procedures) many times involves an initial Reprimand (which might be grieved), followed by a proposed-then-decided Suspension (which also might be grieved), and THEN by an eventual proposed Removal. Those steps invariably take more than 31 days.
  • Separately, performance-based removals need be supported by only substantial evidence, whereas misconduct-based removals must be proven by the higher burden of a preponderance of the evidence. And MSPB cannot mitigate a performance-based removal to something else. No Douglas Factors to worry about. 432-removals are the preferred procedure to deal with problem employees who can’t or don’t do what they are told to do performance-wise.

In addition to all of this, we have to acknowledge that there are exceptions to the concept that can’t-do problems are necessarily addressed via a 432-performance-based action. We routinely use 752-adverse-action procedures to remove employees who can’t do things, e.g.:

  • The employee who can’t come to work because of matters beyond the employee’s control where leave has been approved (Excessive Absence)
  • The employee who has a medical limitation and, thereby, can’t perform an essential job function (Medical Inability to Perform)

I hope you either read one of our earlier FELTG articles and/or attended our webinars that explained that the Federal Circuit recently changed what management is required to do when confronted with a non-performing employee. Previously, we had to prove that the employee was put on notice of on-going unacceptable performance (usually by the supervisor initiating a Demonstration Period, i.e., a DP), and then prove that the employee did not perform acceptably during the DP. Now, we also must prove that the employee was performing unacceptably BEFORE the DP was initiated.

Bottom Line: Assessing whether a problem with an employee is “can’t do or won’t do” is unnecessary and possibly misleading. It’s better just to focus on the outcome when dealing with a poor performer. When it comes to the concept of volition – can’t do vs. won’t do – Master Yoda said it most succinctly, “You must unlearn what you have learned. … Try not. Do, or do not. There is no try.” Hey, if we can’t rely on the wisdom of a little, old, green alien, who can we trust?

Best of luck out there. Wiley@FELTG.com

 

Ask FELTG: For FMLA eligibility to care for an adult child, does the inability to perform one of the activities of daily living have to be permanent?

August 30, 2021

A FELTG customer shared the following hypothetical scenario: An adult child is involved in a car accident and during a lengthy recovery period may not be capable of performing one of the activities of daily living (ADLs), however the prognosis is that eventually they will regain all functionality.

FMLA eligibility only covers children under the age of 18 unless the child has a mental or physical disability defined as being incapable of self-care/cannot perform one of the ADLs.

Is the parent, who is the employee, eligible to take FMLA to care for the adult child in this situation?

And here is FELTG’s answer:

To be eligible, the son or daughter must be unable to perform three activities of daily living (see definition of son or daughter in 5 CFR 630.1202), not one.

The requirements are that:

  • Son or daughter over 18 must first have a disability to be covered.
  • Beyond that must be incapable of self-care because of the disability, which requires active assistance or supervision of the parent.

If there is a complete recovery, the parent may not have FMLA eligibility any longer. The adult son or daughter would have to continue to meet the definition of disabled in addition to the need for care for there to be continued coverage for the parent under FMLA.

If you’re looking for more information on FMLA, join FELTG Senior Instructor Barbara Haga for the 75-minute session Medical Certification Requirements for Sick Leave and FMLA, happening during Federal Workplace 2021: Accountability, Challenges and Trends, which takes place September 27 – October 1. Click here for more information about this exciting weeklong event. Or contact info@feltg.com to find out how to bring FMLA training (or any other Federal employment law training) to your agency – either onsite or virtually.

Do you have a Federal employment law-related question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Am I supposed to report when I notice that one of my employees has symptoms of the new COVID-19 variant? Wouldn’t that be a violation of HIPAA or the ADA?

June 29, 2021

Even as masks come off and life appears closer to normal, there is still a lot of concern about the spread of coronavirus, especially with the identification of new variants. A recent outbreak in a state government office in Manatee County, Fla., left two employees dead and several hospitalized.

The current White House stance is that “generally” Federal employees are not required to be vaccinated against COVID-19. So, we understand your unease with employees who show symptoms of the virus, and the potential impact on employees who are not vaccinated.

The Health Insurance Portability and Accountability Act (HIPAA) requires healthcare facilities to ensure the protection of patient’s medical data. HIPAA is not applicable in this situation.

The Americans with Disabilities Act requires that employers keep all medical information about employees confidential, even information that’s not about a disability. The CDC addressed a similar question in its most recent guidance, and provided the following answer:

“Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

The question is what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.”

For more information on this topic, join FELTG Instructor Katherine Atkinson for Vexing Vaccine Requirements: Responding to Requests for Exemptions and Reasonable Accommodations – a 75-minute webinar, starting at 1 pm ET on July 12. The webinar will answer questions regarding obligations to accommodate employees who are uncomfortable being in a workplace where not everyone will be vaccinated, and those who have underlying medical conditions that make them more susceptible to a severe infection. 

Do you have a Federal employment law-related question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.