LOCAL 2452 AFGE

IMPORTANT SICK LEAVE INFORMATION

             Scenario: Your leave balances are low, particularly sick leave. You aren’t happy about it, but management is aware that you had surgery recently, or that you have a chronic illness that results in frequent bouts of nausea and vertigo, or you burned through your sick leave using Family Friendly caring for your infant child who was ill for a time. Your leave balance is low, but you know it’s not because you have a hangover every Monday or because you feel “unwell” every Friday that your part-time co-worker isn’t on duty.

Unfortunately, your management staff may have been encouraged by “higher ups” to violate the contract and put you on sick leave restriction—which means management asks you to provide a doctor’s statement every time you take off work. Or perhaps your supervisor threatens to put you on leave restriction if your balances don’t improve.

Article 31, Section 4.B., provides that: “Normally, unless an employee is on sick leave restriction in accordance with this article, he/she will not be required to obtain medical certification for sick leave of 3 consecutive work days or less.” 

Article 31, Section 4.C. is very clear as to when an employee is placed on sick leave restriction:

C. In individual cases, if there is evidence that an employee’s leave pattern may indicate that an abuse of sick leave exists, the employee shall first be advised by an interview, which shall be recorded in the SF-7B file, of the reasons a medical certificate may be required for each subsequent absence or sick leave. The use of sick leave for scheduled medical appointments caused by recurring and previously documented medical conditions will not be considered a leave pattern that indicates an abuse of sick leave.

If the employee’s leave pattern continues, the employee will be advised in writing as to whether an acceptable medical certificate may be required for each subsequent absence for which sick leave is requested.

The sick leave usage of all employees under sick leave restriction will be reviewed at least every four (4) months and a written decision to continue or lift the restrictions made. If the review shows significant improvement, the supervisor will lift the restriction.

All this language is taken from the contract section regarding Sick Leave. Leave restriction does not apply to annual leave.

As workloads increase and staffing decreases, management is looking under every nook and cranny to push employees to produce more work credit for their office.

Know your rights!

Some employees in our Local and in Region 9 who have been placed on sick leave restriction or who will be out for more than 3 consecutive days are being required by their supervisors to provide more information than the AFGE Union Contract, law, and/or the American’s with Disabilities Act allows.

Employees are being told that if they do not provide the following information they will not have their leave approved or they will be placed on AWOL:

            1.  Name and telephone number of the treating physician

            2.  Date of patient visit and/or incapacitation

            3.  Diagnosis

         4. Prognosis

         5. Type of treatment (i.e., medication, physical therapy, etc.) Restrictions

             and/or limitations on your ability to perform your job

         6.  Expected date of recovery and/or return to work

Article 31, Section 4 C states that “in individual cases, if there is evidence that an employee’s leave pattern may indicate that an abuse of sick leave exists, the employee shall first be advised by an interview, which shall be recorded in the SF-7B file, of the reasons a medical certificate required for each subsequent absence or sick leave. The use of sick leave for scheduled medical appointments caused by recurring and previously documented medical conditions will not be considered a leave pattern that indicates an abuse of sick leave. If the leave pattern continues, the employee will be advised in writing as to whether an acceptable medical certificate “may be” required for each subsequent absence for which sick leave is requested.”

Article 31, Section 4 B 4 states “in the event a medical certificate is necessary, the completion of the reverse side of the SSA-71 by a physician or practitioner, or equivalent shall normally be considered sufficient.”

The ADA (American's with Disabilities Act) states that they (management) can only ask for a diagnosis, prognosis etc. if it is "job related" or "consistent with business necessity". In this situation the ADA covers all employees, not just qualified individuals with disabilities.

What the ADA specifically states is that "a covered entity(11) shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

11-"Covered entity" means an employer, employment agency, labor organization, or joint labor management committee.

A disability inquiry includes but is not limited to; asking an employee to provide medical documentation regarding his/her disability; asking an employee's co-worker, family member, doctor, or another person about an employee's disability; asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee's taking of such drugs or medications; asking an employee a broad question about his/her impairments this is likely to elicit information about a disability.

Per the ADA the definition of "job related" and "consistent with business necessity" is; generally, a disability related inquiry or medical examination of an employee may be "job related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evident, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition".

The ADA goes on to say that an employer may request a doctor's note or other explanation to substantiate his/her use of sick leave as long as it has a policy or practice of requiring all employee's, with and without disabilities, to do so. 

If you give them the diagnosis etc. you may be establishing a pattern and/or precedent for yourself and/or your coworker’s and they will continue to demand it and you will have to continue to provide since you have established a past practice. Employee’s should not just readily provide this information without management establishing how the request is job related and what the business necessity is; employee’s should demand to see the policy they are claiming gives them the right to demand it. They may threaten you with AWOL and in that case you need to tell them you are contacting the Union and you should contact your Union Rep as soon as possible.

JUST REMEMBER: MANAGEMENT WILL GET AWAY WITH AS MUCH AS YOU ALLOW THEM TO; GIVE AN INCH AND THEY WILL TAKE A MILE OR TWO OR THREE.