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Employee Leave Requests Due to Incarceration

1. Purpose. This Human Resources Management Letter (HRML) provides guidance to

Human Resources (HR) offices regarding leave requests from employees who are absent
from duty due to incarceration.

2. Background.

a. The Department of Veterans Affairs (VA) mission is to fulfill President Lincolns

promise: To care for him who shall have borne the battle, and for his widow, and his
orphan by serving and honoring the men and women who are Americas Veterans. The
five core ICARE values of Integrity, Commitment, Advocacy, Respect, and Excellence
define VA culture and strengthen our dedication to those we serve. These values provide
a baseline for the standards of behavior expected of all VA employees. To grant leave to
employees who are absent from duty to serve a jail or prison sentence following a criminal
conviction is to violate the Veterans confidence in the VA and undermines the founding
principles of VAs ICARE values.

b. VA Policy on Leave found in VA Handbook 5011, Part III, Chapter 2, paragraph 3a,
for Title 5 employees provides that requests for annual leave and leave without pay
(LWOP) will be considered in the light of current and anticipated workloads. For Title 38
employees, VA Handbook 5011, Part III, Chapter 3, paragraph 4a, provides the granting
of annual leave shall be a matter of administrative discretion as to when and in what
amount it may be authorized. Requests for annual leave shall be acted upon in the light of
essential medical services and with due regard to the welfare and preferences of individual

3. Guidance.

a. Employees who are involuntarily detained or incarcerated following an arrest by a law

enforcement authority, prior to a conviction, will have requests for annual leave or LWOP
considered based on the impact of the employees absence on the current and anticipated
workload, the need for the employees service, and the likelihood the employee will return to
work, just as in the case of any other employee who requests such leave.
Example: A VA medical center employee is arrested and taken into custody for fighting off-
site prior to the start of his evening shift at the medical center. Due to the arrest, the
employee is unavailable for his shift. The employee calls the medical center to notify his
supervisor of the arrest and requests leave. No formal charges are filed, and the employee

is released from custody the next morning. The supervisor should consider the request for
leave in light of the impact the employees absence had on the workload.

b. Employees incarcerated following a conviction, including a criminal or civil contempt

proceeding, will be considered absent without leave (AWOL), which is an unauthorized
absence from duty. It is not appropriate to approve leave of any kind for the period of
absence required to serve a jail or prison sentence. Leave requested as a result of an
incarceration following a conviction will be denied.

c. When employees are determined to be AWOL, the leave approving official shall
document the reason or reasons for charging an absence to AWOL at the time the decision
is made. This will be done by a written statement from the leave approving official.

d. Employees will be informed that the charge to AWOL has been included in the time
and attendance report. Employees will only be charged AWOL for the actual period of
unauthorized absence due to incarceration.

e. If the AWOL is later excused because the circumstances surrounding the absence for
incarceration are such that leave would have been approved, the charge should be changed
to annual leave, sick leave or LWOP, as appropriate.

f. Supervisors shall consult with their HR office to determine if a disciplinary action is

appropriate for a charge of AWOL.

g. Court ordered treatment as part of a sentence may not be considered incarceration.

Supervisors shall consult with their employee relations specialist before approving leave.

h. In the event an employee does not inform management that a leave request is due to
incarceration, but VA later learns the leave was due to incarceration, management should
reconsider any leave approval in light of paragraphs 4a and 4b above.

i. Noncompliance with VA policy, including misrepresentation of the circumstances

regarding a request for leave, constitutes grounds for disciplinary action, up to and including
removal from the Department.

5. Questions. Questions concerning this HRML should be directed to Worklife and

Benefits Service at

Nathan H. Maenle