CalHR Case Number 20-M-0065
Request for Reinstatement after Automatic Resignation (AWOL)
Final Decision Adopted July 15, 2021
By: Eraina Ortega, Director
PROPOSED DECISION
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge III (ALJ), Department of Human Resources (CalHR) at 9:00 a.m. on May 18, 2021, in Sacramento, California. The appellant, was present and represented by her sister. Leslie Meek, Health Care Employee Relations Officer, California Correctional Health Care Services (CCHCS), represented CCHCS, respondent. All parties participated telephonically.
I JURISDICTION
On September 28, 2020, California Correctional Health Care Services (CCHCS), respondent, notified the appellant, she was being automatically resigned for being absent without leave (AWOL) from September 18, 2020 through September 24, 2020. The appellant filed a request for reinstatement appeal with CalHR on October 21, 2020.
California Government Code section 19996.2 authorizes CalHR, after timely appeal, to reinstate an employee after automatic resignation if she makes a satisfactory explanation as to the cause of her absence and her failure to obtain leave and CalHR finds she is ready, able, and willing to resume the discharge of the duties of her position. The appeal complies with the procedural requirements of Government Code section 19996.2. CalHR has jurisdiction over the appeal.
II PROCEDURAL HISTORY
On October 21, 2020, the appellant filed a request for reinstatement after automatic resignation appeal with the CalHR Statutory Appeals Unit (SAU). On November 3, 2020, the SAU issued a Notice of Time and Place of telephonic Pre-Hearing Conference for November 23, 2020. At the telephonic Pre-Hearing Conference, the telephonic Evidentiary Hearing was scheduled for February 25, 2021.
On February 17, 2021, the appellant requested a continuance, and the respondent objected. The continuance was granted on a showing of good cause and the telephonic Evidentiary Hearing was continued to May 18, 2021. This telephonic Evidentiary Hearing followed.
III ISSUES
The appellant argued a family emergency required her to request Family Medical Leave Act (FMLA) leave, which was unreasonably denied.
The respondent argued the appellant did not have permission to be absent from work and the AWOL separation should be sustained.
The issues to be determined are:
1. Did the appellant have a satisfactory explanation for her absence for the period September 18, 2020 through September 24, 2020?
2. Did the appellant have a satisfactory explanation for not obtaining leave for the period September 18, 2020 through September 24, 2020?
3. Is the appellant ready, able, and willing to return to work and discharge the duties of a Registered Nurse, Correctional Facility?
IV FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence. The appellant began her career with the State of California on December 2, 1976. She left State service for approximately 23 years and returned on April 11, 2016, as a Registered Nurse, Correctional Facility, at Mule Creek State Prison. She worked the first watch from 10:00 p.m. to 6:00 a.m., and was supervised by acting Supervising Registered Nurse (SRN) II. She was responsible for ensuring staffing of SRNs, Certified Nursing Assistants and Psychiatric Technicians at respondent’s 24/7 prison facility.
The SRN II explained the appellant worked a Monday through Friday schedule even though she began work at 10:00 p.m. Sunday night, because she worked more hours on Monday, than Sunday. She testified the appellant followed the call-in procedure each day of her absence from September 18, 2020 through September 24, 2020. With the assistance of her daughter and son-in law, the appellant was able to utilize a conference call system while still in Uganda, Africa. She documented the appellant’s calls on a spreadsheet.
The appellant’s elderly mother had been visiting since October 2019 from Uganda, Africa, and planned to return home in March 2020. The global pandemic and subsequent shutdown of nations interrupted those plans. The appellant, with the assistance of a caretaker, had been caring for her mother who had Alzheimer’s Dementia. Sometime in July 2020, the caretaker indicated she could no longer assist the appellant with her mother’s care. The appellant contacted the local Ugandan community for assistance, but was unable to secure a new caregiver.
On August 6, 2020, the appellant learned from members of the Ugandan community a repatriation[1] flight could soon leave from Dulles Airport in Washington, D.C. On August 7, 2020, the appellant researched how to secure seats for the repatriation flight to Uganda. She learned “flight viability is dependent on our raising a minimum of 100 passengers . . . possibly in August or September 2020.” The appellant was required to provide a negative COVID test and a Visa to travel to Uganda, and began gathering the necessary travel documents.
On August 7, 2020, the appellant also emailed the Director of Nursing (DON) and the Certified Nurse Educator (CNE) advising each of her situation and need for emergency leave. She did not receive a response. The DON and CNE did not testify. When she did not receive a reply from the DON or CNE, the following Monday, August 10, 2020, she went to speak to Associate Governmental Program Analyst and Family Medical Leave Act (FMLA) Coordinator. The FMLA Coordinator is responsible for FMLA, Reasonable Accommodation and other issues involving returning employees to work. She told the appellant to complete an FMLA leave request and a Leave of Absence (LOA) request.
The appellant then learned the repatriation flight was scheduled for August 16, 2020, and booked flights for she and her mother. Due to COVID-19 restrictions associated with the global pandemic, she was unable to secure a round trip ticket. The appellant explained the urgency of returning her mother to Uganda because without a caregiver, she would be unable to continue working. She was extremely concerned her mother would pass away in the United States, and would incur additional storage expenses for later travel to Uganda for burial.
The appellant completed respondent’s FMLA Employee Rights & Responsibilities Notice provided by the FMLA Coordinator. It notified her that her leave request was, “provisional and final approval is contingent upon my eligibility and submission of complete and sufficient certification.” It also stated, “I understand that if I am eligible for protected leave, certification must be provided within 15 days from the date of request and that my failure to comply with these terms may result in a delay or denial of protected leave under FMLA/CFRA/PDL.”
The FMLA Coordinator received the appellant’s FMLA documents on August 12, 2020, and testified she was eligible for FMLA leave as she had worked the requisite number of hours in the previous year. After reviewing the appellant’s FMLA application, she determined the Certification of Health Care Provider form was incomplete. The FMLA Coordinator explained the Amount of Time Needed portion of the FMLA Certification of Health Care Provider form was incomplete. She testified “we need a date” on that portion, but did not cite to any law or policy requiring a date. She recalled speaking with the appellant in mid-August regarding her urgent need to return her mother to Uganda.
On August 20, 2020, she sent the appellant a letter advising the medical certification on her FMLA application was incomplete, but did not explain why she believed it was incomplete. The letter titled, Notice of Delay – Request for Additional Information, stated:
“The Certification of Health Care Provider form is otherwise incomplete and needs to be completed. Specifically, Part B. Number 9, how many times per week or month and duration of leave. We have enclosed the original Certification of Healthcare Provider form for your review. If you do not return the complete and sufficient certification to us within 15 calendar days, your request for leave will be denied.”
The appellant’s Certification of Health Care Provider FMLA application indicated the duration of her mother’s illness as “indefinite” and “progressive debilitating condition” with no specific end date.
Upon receipt of the FMLA coordinators’ August 20, 2020 letter, the appellant’s daughter scanned it electronically to her mother in Uganda, Africa. The appellant then reviewed her completed Certification of Health Care Provider FMLA application, and determined it was complete. She testified she was never told the word “indefinite” was the problem, or that her FMLA denial was based on not specifying a date. The FMLA coordinator explained without a specific date on Section 9, she was unable to process the application.
The Certification of Health Care Provider at Part B: Amount of Time Needed, has three sections, 7, 8, and 9. Section 9 of the Certification of Health Care Provider refers to leave of an intermittent basis. Specifically, it states, “[b]ased upon the patient’s medical history and your knowledge of the medical condition, estimate the frequency of flare-ups and the duration of related incapacity, to include doctor visits or medical treatment, that would necessitate the employee to be off work on an intermittent basis:” [Emphasis in original.] The Health Care Provider wrote “progressive debilitating condition (Alzheimer’s/Dementia),” and because the need was not intermittent, did not fill in the space indicating an intermittent need for leave. The physician signed the form where appropriate on August 12, 2020.
Section 7 of the Certification of Health Care Provider, asks, “Will the patient be incapacitated for a single continuous period of time due to his/her serious health condition, including any time for treatment and recovery?” [Emphasis in original.] The physician checked the yes box. Section 7 continues, “If yes, estimate the beginning and ending dates for the period of incapacity?” Here the physician wrote “NOW through indefinite.”
Section 7 also has three follow-up questions regarding the amount of time needed. “If the patient is the employee’s family member, answer the following: (a) Will or does the patient require the employee’s assistance for basic medical, hygiene, nutritional, safety and transportation needs? (b) Would the employee’s presence to provide psychological comfort be beneficial to the patient or assist in the patient’s recovery? (c) If the patient is an adult child of the employee’s will he/she need assistance with 3 or more Activities of Daily Living (ADLs)?” The physician answered yes to each question indicating the amount of time needed.
Section 8 of the Certification of Health Care Provider asks, “Will the employee need to attend follow-up treatment appointments or work part-time or a reduced work schedule due to the serious health condition?” The physician again checked yes. “If yes, estimate the schedule, if any, including dates of any schedule appointments and the time required for each appointment, including any recovery period:” The physician wrote, “Mother has Alzheimer’s dementia. Need will be ongoing.”
On September 2, 2020, The supervisor sent the FMLA Coordinator and another employee, the following email,
“I am inquiring with the two (sic) you to see if RN submitted either FMLA or LOA paperwork? She has been calling off work since 8/17/20 and has informed me on the phone that she has talked to both of you. Thank you for any information you can provide.”
The FMLS Coordinator responded, “She told me that the FMLA is not going to work out, so she was going to do the LOA.” The appellant denied she told the FMLA Coordinator or anyone else that she no longer wished to pursue FMLA leave and the FMLA Coordinator does not recall when or how she received the information. There was no evidence the other employee responded to the supervisor’s email.
On September 15, 2020, the FMLA Coordinator sent the appellant a Notice of Denial of Protected Leave letter. This was another form letter which told the appellant, “[y]ou failed to provide the required documentation and/or medical certification, as set forth in the Notice of Eligibility For, and Provisional Grant of Protected Leave and/or Notice of Delay, or Request for Recertification Notice previously sent to you on 08/20/2020, in the time required.” [Emphasis in original.] On September 16, 2020, the Certified Nurse Educator, denied the appellant’s LOA request because, “currently too short on Nursing Staff to accommodate,”
The appellant was scheduled to work on Friday, September 18, 2020. She did not report to work, but called in to report her absence, stating she was still taking care of her ill mother. The supervisor advised the appellant her LOA had been denied and all available leave credits were exhausted. She was further told if she failed to report to work she would be considered AWOL. On September 21, 22, 23, and 24, 2020, the appellant called in to report she was still taking care of her mother in Uganda, Africa and would not be reporting to work. The supervisor reiterated her LOA had been denied and if she failed to report to work she would be considered AWOL
On September 28, 2020, the respondent invoked the AWOL statute under Government Code section 19996.2, for the appellant’s absences from September 18, 2020 through September 24, 2020. No doctors testified.
V ANALYSIS
The AWOL statute, Government Code section 19996.2, subdivision (a) states: “[a]bsence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked.” It is not disputed the appellant was absent for more than five consecutive working days as she was not at work from September 18, 2020 through September 24, 2020.
Government Code section 19996.2, subdivision (a) also provides: “[r]einstatement may be granted only if the employee makes a satisfactory explanation to the department [CalHR] as to the cause of [her] absence and [her] failure to obtain leave therefor, and the department finds that [she] is ready, able, and willing to resume the discharge of the duties of [her] position or, if not, that [she] has obtained the consent of [her] appointing power to a leave of absence to commence upon reinstatement.”
The appellant has the burden of proof in these matters and must prove each element of her claim by a preponderance of the evidence. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)
The appellant had a satisfactory explanation for her absence.
CalHR has long held that an illness of an employee or an employee family member is a satisfactory explanation for an absence from work. An agency’s consistent maintenance of a statutory interpretation under scrutiny, especially if it is long-standing, is a circumstance which weighs in favor of judicial deference. (Yamaha Corp. of America v. State Bd. of Equalization (1999) 73 Cal.App.4th 338, 339.) In this case, the appellant requested Family Medical Leave Act (FMLA) leave from respondent to care for her mother with a serious health condition.
Under the federal FMLA, “an employee shall be entitled to a total of 12 administrative workweeks of unpaid leave during any 12-month period for one or more of the following reasons: . . . (3) The care of a . . . parent of the employee, if such . . . parent has a serious health condition. . .” On August 7, 2020, the appellant advised respondent’s Director of Nursing (DON) and its Certified Nurse Educator (CNE) of her emergency need for leave to return her ill mother to Uganda, Africa, but received no response.
On August 9, 2020, the appellant requested FMLA leave to care for her ill mother for the period August 15, 2020 through September 30, 2020. On August 12, 2020, the appellant’s Health Care Provider signed the FMLA Certification of Health Care Provider, and indicated, the appellant’s mother’s illness was “indefinite” with no specific end date. On August 20, 2020, the FMLA Coordinator, respondent’s Return to Coordinator, approved the appellant’s FMLA eligibility. The appellant proved by a preponderance of the evidence, she had a satisfactory explanation for her absence to care for her mother with a serious health condition.
The appellant had a satisfactory explanation for not obtaining leave.
It is not disputed the appellant advised the respondent she required federally FMLA protected leave to care for her ill mother, and called in each day to report her absence. It is also not disputed the appellant completed respondent’s FMLA Employee Rights & Responsibilities Notice and certified she understood her “failure to comply with these terms may result in a delay or denial of protected leave under FMLA/CFRA/PDL.” However, when the FMLA Coordinator sent a Notice of Delay – Request for Additional Information form letter to the appellant on August 20, 2020, she failed to indicate what additional information she believed was missing.
The FMLA Coordinator testified, “we need a date” when referring to why she believed the appellant’s Certification of Health Care Provider was incomplete. She admitted she never told the appellant what was incomplete because she relied on her form letter to advise the appellant. Her form letter stated, “[t]he Certification of Health Care Provider form is otherwise incomplete and needs to be completed. Specifically, Part B, Number 9, how many times per week or month and duration of leave.” The FMLA Coordinator failed to recognize this section was for intermittent leave, which was irrelevant to the appellant’s need for leave.
The appellant noted the doctor had completed Part B, Number 9, and had written, “Progressive debilitating condition (Alzheimer’s/Dementia)” but did not fill in a Frequency or Duration as he had answered the frequency/duration portion in the preceding section. Specifically, the doctor wrote in Part B, Number 8, “Mother has Alzheimer’s dementia. Need will be ongoing.” [Emphasis added.]
“An employee has an obligation to respond to an employer’s questions designed to determine whether an absence is potentially FMLA-qualifying. Failure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection . . . . “ (29 C.F.R. § 825.303(b) (2013).) Here, the appellant fulfilled her obligation under the FMLA by having her physician complete the Certification of Health Care Provider form. The respondent, did not provide the appellant sufficient information to cure any perceived defect to her FMLA application and was not reasonable under the circumstances. Black’s Law Dictionary defines reasonable as “fair, proper, just, moderate, suitable under the circumstances.” (Black Law Dictionary (6th Ed. (1990) p 1265, col 1.)
The FMLA Coordinator’s form letter to the appellant was unreasonable because it failed to indicate what was incomplete on the Certification of Health Care Provider. Additionally, her testimony the respondent required a date on a certain line is not supported by the evidence and she was unable to explain why she believed this to be true.
The United States Supreme Court concluded that “[o]ne of the FMLA’s stated purposes is to “entitle employees to take reasonable leave.” 29. U.S.C. § 2601(b)(2). Coleman v. Court of Appeals of Maryland (2012) 132 S.Ct. 1327.) The appellant’s request for leave to repatriate her terminally ill mother to Uganda was reasonable; however, the FMLA Coordinator’s actions were unreasonable under the circumstances.
The FMLA Coordinator knew the appellant had an emergency need qualifying her for federal FMLA leave to care for her seriously ill mother. Moreover, her statement to the appellant’s supervisor on September 2, 2020, “she told me that the FMLA is not going to work out,” is not supported by the evidence. She does not recall when she was allegedly told this, and more importantly, the appellant denied telling her she no longer wished to pursue FMLA leave. Furthermore, the FMLA Coordinator’s testimony is not credible because her conduct of continuing to process the appellant’s FMLA claim is diametric to her testimony the appellant was no longer interested in FMLA.
As noted above, the appellant fulfilled her obligation under FMLA when she provided the completed Certification of Health Care Provider to respondent. If the respondent believed the document was incomplete, it was incumbent upon it to reasonably notify the appellant what was required. Respondent’s form letter was wholly inadequate and should have stated, “we need a date in Section 9,” instead of a routine form letter merely stating it was incomplete.
Lastly, the FMLA Coordinator’s testimony “we need a date,” is not supported by federal FMLA entitlement laws. The federal law is clear, “an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave.” (29 C.F.R. §825.302(d) (2013).) As early as August 9, 2020, the appellant provided written notice detailing the reasons for her leave, how long she required the leave and her anticipated return date, thus satisfying the Code of Federal Regulations written notice requirement.
Title 5 Code of Federal Regulations section 630.1208 (b)(2) clearly states, “The written medical certification shall include - (2) The probable duration of the serious health condition or specify that the serious health condition is a chronic or continuing condition . . .” [Emphasis added.] The appellant and her doctor did exactly what was required under the federal FMLA. Respondent’s failure to read the FMLA forms submitted, was unreasonable under the circumstances and that failure should not be imputed to the appellant.
The appellant proved by a preponderance of the evidence she had a satisfactory explanation for not obtaining leave.
The appellant is ready, able and willing to return to work.
The appellant testified credibly she is a hard worker who is ready to return to the duties of a Registered Nurse, Correctional Facility. The reason for her absence was transitory, as she successfully returned her mother to her native Uganda, Africa and is no longer required to provide the necessary 24/7 care. Because no impediment remains for her to return to work and discharge the duties of a Registered Nurse, Correctional Facility, she has proved by a preponderance of the evidence she is ready, able and willing to return to work.
VI CONCLUSIONS OF LAW
The appellant proved by a preponderance of the evidence she had a satisfactory explanation for her absence. The appellant proved by a preponderance of the evidence she had a satisfactory explanation for not obtaining leave. The appellant is ready, able and willing to return to work.
* * * * *
THEREFORE, IT IS DETERMINED, the appeal for reinstatement after automatic resignation from the position of Registered Nurse, Correctional Facility, with California Correctional Health Care Services effective September 16, 2020, is granted. The appellant shall be returned to work within
two (2) weeks of this Order.
[1] Repatriation is the return of someone to their own country. (The Living Webster (1977) p. 813, col 1.)
