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Federal leave and time off policies can get mighty complicated. At the IRS, both managers and line employees have had trouble sticking to procedures for family and medical leave act leave. And for absence without leave. Enough so that the commissioner asked the Treasury Inspector General for Tax Administration to look into it. For what they found, the director of TIGTA’s management and exempt organization business unit, Carl Aley spoke to the Federal Drive with Tom Temin.
Carl Aley: The objective of the audit was to determine whether the controls were sufficient to ensure that leave taken by IRS employees was authorized, appropriate and properly approved. And in general there’s automated controls that prevent a lot of erroneous use of leave or from employees taking more leave than that is authorized and managers knowledge of the leave policies prevented overuse of the most common types of leave. But there can be improvements made when documented and improving leave requests, particularly less common types of leave, like the Family Medical Leave Act, and certain other types of leave that like, for example, leave that was provided in response to COVID-19.
Tom Temin: Because you mentioned that for some of the other types of leaves, such as accumulating 80 hours of non-paid status, and so forth. Those are generally OK because the system detects when people have accumulated what they’re entitled to. And then, then if they try again, the system won’t let them.
Carl Aley: That’s correct. So if you’re in a leave without pay status, for over 80 hours, you shouldn’t accumulate new sick leave, or annual leave and system controls prevented that kind of thing from happening. There’s also restrictions on the number of hours you lose, or you can use, like, for example, for sick leave, to care for family members and the Family Medical Leave Act have limitations on the number of hours you can use in any 12 month period, generally managers knowledge of that prevented overuse,
Tom Temin: but you looked at say 50 cases you pulled and I want to ask you what judgmentally sampled means. But you looked at 50 cases, for FMLA, 44 of them did not follow the right procedures for requesting or approving. What exactly happened?
Carl Aley: So we pulled 50 judgmental because of the complexity, they required extensive review. In cases, many of the cases, employees would request leave over different periods of time throughout the course of the year. So it became complex to look at each case. But what happened was of the 50 that we selected out of roughly 7,000 or so employees who took FMLA leave between September 2018 and October 2020, which was just over two year period, 44 of the 50 had missing or incomplete documentation. For example, medical certification is required in cases where there’s a serious medical condition. And some of the requests were missing that medical certification. And what was happening was the guidance governing the Federal Medical Leave Act leave was unclear and inconsistent. And managers weren’t used to dealing with that on a regular basis, which led to human error.
Tom Temin: Got it. And with 44 out of 50 of those judgmentally sampled cases, that’s a pretty high percentage of 88%. Do you feel that that percentage is projectable across everyone that tried to or used FMLA in that period?
Carl Aley: Well, it’s because it’s a judgmentally selected sample, we can’t project it to the population. But we did see widespread, missing documentation. So there was concern that there was missing documentation pretty widespread.
Tom Temin: And in some cases, documentation went missing altogether?
Carl Aley: That’s correct. Sometimes there was no documentation.
Tom Temin: And why is that or that doesn’t sound like it’s proper procedure either?
Carl Aley: Again, there’s inconsistent procedures. So the directions to employees in what in the Internal Revenue Manual, and separate guidance issued by the Human Capital Office didn’t always agree. And, for example, there’s the Internal Revenue Manual says that the relief can be requested verbally, but that can only be invoked verbally. Their documentation needs to be subsequently, provided but it was unclear that that was necessary.
Tom Temin: It sounds like this is all an issue of training and people’s understanding of the rules and maybe pulling in the involvement of HR people, when the manager doesn’t know all the details, more than people trying to act nefarious.
Carl Aley: I would say that that’s fair managers that we spoke with, and we interviewed 19 managers who in the course of the audit, all believed that additional training would be beneficial as it relates to leave policy. Even though the IRS had issued guidance on to administer the leave. The managers would need to be proactive about going and finding it.
Tom Temin: We’re speaking with Carl Aley. He’s director of the Management and Exempt Organization Business Unit at the Treasury Inspector General for Tax Administration. And you also found issues with people that were away without leave, and I guess my understanding of that term is, if you are AWOL, you’re already in violation of policy. What was the issue with AWOL employees?
Carl Aley: That’s correct. AWOL is a conduct issue. And over a 27 month period between September 2018 and January 2021, which, again, about 27 months, there were about 11,000 IRS employees who were charged AWOL on at least one occasion. About 8,800 of those employees did not have a documented AWOL conduct issue, including over 5,000 who had three or more offenses. In addition, there were 3,000 employees who were charged AWOL in excess of one week, including more than 1,000 employees who were AWOL more than four weeks and 139 employees who were AWOL more than 25 weeks.
Tom Temin: And what can we infer from that? I mean, the bigger numbers are a pretty fair percentage of the entire IRS population of about 80,000, 90,000 employees last I checked, so what do you draw? What’s the inference from all of this?
Carl Aley: Well, again, this was a confusing policy related to the use of AWOL, there was some language that was different than what the guidance is from the Office of Personnel Management in so much that managers may have been confused that AWOL was not a conduct issue. But instead, in order to take a disciplinary action, it would be another aggravating offense would be necessary. Again, this was due to the unclear guidance. So what could have happened is managers were unclear that thinking that just putting an employee on AWOL where they’re in a non-paid status was the punishment. But really, the manager’s guide for penalty guide provides them the penalties, it should be administered for AWOL and just putting employee on a wall is not the disciplinary action.
Tom Temin: In other words, if the employee is on AWOL, they could come waltzing back anytime they wanted, and just resume getting paid, or so they thought?
Carl Aley: Well, we didn’t get into that on this audit. But yes, there were a number of employees who did not have a conduct issue. And we refer the 12 employees who had the highest AWOL charges to the IRS. In some circumstances, employees that are on AWOL may have legitimate reasons, for example, they’re waiting for medical documentation. So for the 12, there were three employees that had valid reasons, but nine of them are now being referred to the labor relations for disciplinary action.
Tom Temin: Got it. So what are your recommendations after looking at these particular types of leave issues?
Carl Aley: We made six recommendations, ensure the guidance for request and improving Family Medical Leave Act is clear and consistent. Review the delivery methods that are available for the guidance and other resources to approve and administer to leave. We had two recommendations related to document retention for Family Medical Leave Act, because what happened was, the IRS was destroying the records for FMLA leave for the employees who had left the service. But they were supposed to keep them for three years regardless of whether they left the service. So we had two recommendations about changing that policy. A recommendation on AWOL guidance and clarifying that AWOL guidance is in fact, a conduct issue. And to conduct focused audits on leave types that are complex, or maybe expose the IRS to risk.
Tom Temin: And then really, then it sounds like some training is needed here. And even though it wasn’t a direct recommendation, it sounds like when managers that have some function for tax administration are dealing with employees in this manner, they should really call in HR to make sure that they’re doing things in the correct way.
Carl Aley: That would be helpful. That’s the second recommendation relates to the delivery methods available for the guidance, because the Human Capital Office does have guidance available for managers to research when they have questions about administering this type of leave. But they have to dig for it again and have to be proactive about finding it. So that’s why the recommendation on delivery methods, if there’s a better way to get this information into the managers hands so that it’s available when they need it.
Tom Temin: And just a final question, does it appear to you that the, I mean, a lot of this data gathering was done before the pandemic drove everybody to telework, and although some of it overlapped in the telework COVID era, do you feel that that event, the pandemic, forced telework made things a little bit more difficult in administering all of the policies for HR?
Carl Aley: The audit didn’t really consider whether or not there was differences during or before the pandemic. There was different periods of time depending on the league. We looked at the audit spend, as you said from both before the earliest was September 2018. And we looked up through January of 2021. We didn’t contemplate whether or not COVID impacted the number of hours or were any problems there was, again, there was a lot of missing documentation throughout 80% for the COVID-19. We did look at specific leave policies and leave options that were offered in response to COVID-19 like emergency paid sick leave, but we didn’t try to break it down to before pandemic or after pandemic.