Office of the General Counsel

Date: March 18, 1999
Matter of: [xxx]
File Number: S9700543.1

OPM Contact: Murray M. Meeker

On February 12, 1999, the [agency] requested that the Office of Personnel Management (OPM) reconsider its decision dated November 16, 1998, in which OPM conditionally determined that forfeited annual leave should be restored to a former [agency] employee who had been prevented from using annual leave because of illness. For the reasons discussed herein, [agency's] request is denied.

In its initial Administrative Report, the [agency] did not contest the former employee's claim that he had been prevented from using annual leave because of illness. However, in its reconsideration request, [agency] explains that there are certain fact patterns which cause the agency concern that employees may be trying to inappropriately enhance their annual leave balances. The [agency] describes five suspicious patterns: (1) employees who are about to retire, substitute sick leave for annual leave in order to carry-over additional annual leave amounts and to then receive an increased lump sum payment for their unused annual leave at the time of their retirement; (2) employees apply for periods of sick leave at the end of the leave year which approximately match periods of previously approved annual leave, especially in circumstances where the employee has used little or no sick leave earlier in the leave year; (3) employees apply for sick leave based on minor or chronic illnesses for which the medical support is "dubious"; (4) employees submit only limited medical documentation that has little relationship between examination dates and the claimed duration of the incapacitation; and (5) there is a lack of specificity in the medical documentation with no indication that tests were conducted, that prescriptions were given, or that the employee's work requirements were considered.

The [agency] explained that when it reviewed the former employee's leave restoration request, several suspicious fact patterns were present: the former employee was eligible to retire; the former employee had used no annual leave during the 1996 leave year prior to the date when he applied for 192 hours of annual leave for the period from November 29 to January 3, 1997, the final day of the 1996 leave year; the 192 hours of annual leave was the exact same number of hours that the former employee subsequently wanted to exchange for sick leave; the former employee's doctor had submitted almost no medical documentation to support the sick leave request; and the date that the doctor signed the second of two Applications for Leave (Standard Forms 71), January 6, 1997, was the same day that the former employee returned to duty, just after the beginning of the 1997 leave year, when he was "obviously no longer incapacitated."

After identifying these suspicious fact patterns, the [agency] requested that the former employee submit additional medical evidence. The agency's Medical Officer reviewed the former employee's additional medical evidence and concluded that the former employee's physician had failed to clarify the nature of the symptoms claimed. For these reasons, the [agency] denied the former employee's restoration request.

The [agency] stressed that the two judicial decisions that had been relied on by OPM in conditionally granting the claim for leave restoration concerned an individual who had presented extensive medical documentation from several sources to support his sick leave request and a second individual whose employing agency had failed to consider a medical certificate before processing her separation. The [agency] continued that employing agencies necessarily have administrative discretion in reviewing the documentation of an employee's illness; that a request for leave restoration is a special circumstance that requires a weighing of medical evidence against other factors; and that it would place an inordinate burden on the agency if it were required to conduct a contemporaneous review of all December sick leave requests where leave restoration is a possibility.

The [agency's] reconsideration arguments miss the point. Employing agencies have discretion to determine whether an employee has submitted sufficient medical documentation to support a sick leave request. See Jackson v. Department of the Navy, 5 M.S.P.R. 451, 454 (1981) (while agencies have discretion to deny sick leave requests, an agency's denial of a sick leave request must be supported by a preponderance of the evidence). The record reflects that the [agency] exercised its discretion and granted the former employee's sick leave request. Having granted the employee's sick leave request, [agency] was precluded from denying the former employee's leave restoration request. Suspicious fact patterns notwithstanding, if an employee was prevented from using previously approved annual leave because of illness for which the agency approved sick leave, the employee is entitled to have his or her annual leave restored. 5 U.S.C.  6304(d)(1)(C). See Crivelli v. Department of Transportation, 794 F.2d 666, 669 (Fed. Cir. 1986) (removal reversed where employee who had approved sick leave was absent during a strike) and Labrie v. Federal Aviation Administration, 16 M.S.P.R. 260, 261-2 (1983).

To further clarify this matter, neither this nor OPM's earlier decision should be read to limit an agency's authority to request additional evidence or deny sick leave if the agency determines that an employee has not provided sufficient documentation to accompany a request for sick leave. Rather, these decisions stand only for the proposition that an agency may not refuse to restore annual leave to an employee whose leave was forfeited due to the use of approved sick leave.

Accordingly, our November 16, 1998 decision conditionally granting the claim for restoration of annual leave is affirmed.