The following is a sample of the most frequently asked questions of the Employee Relations Staff. If you have any questions concerning conduct, performance, medical issues or other employee relations' topics, please e-mail your questions to dbennett@ars.usda.gov and a prompt response will follow on our homepage.

1. What is the difference between a misconduct and performance problem?

Misconduct generally involves instances in which an employee's actions do not conform with accepted employee demeanor and may be intentional on the part of the employee. Examples of employee misconduct include:

Absence Without Leave (AWOL)
Insubordination
Failure to Follow Supervisory Instructions
Misuse of Official Time
Destruction of Government Property
Misuse of Government Property
Falsification of Government Documents

Performance actions should only be applied to situations where work is deficient or unacceptable (as evaluated against established performance standards). Unacceptable work products may stem from misunderstanding, lack of knowledge, or overall inability to meet the requirements of the position. Performance actions are also termed remedial actions which may take the form of counseling, training, reassignment, demotion, or removal.

Ask a simple question to help you distinguish whether you have a performance problem or a conduct issue: Can't the employee perform a task OR won't the employee perform a task? If an employee cannot perform a task, you may have a performance problem. If an employee won't perform a task, you may have a conduct issue.

2. Is there a difference between Leave Without Pay (LWOP) and Absence Without Leave (AWOL)?

While both types of leave are nonpay categories, there are significant differences between the two. LWOP is approved leave and requires advanced supervisory approval, except in emergency situations. Generally, even though the reason for requesting LWOP is known to be legitimate, the request may be denied if the employee's services are required or if the employee has not followed proscribed leave procedures.

AWOL is an absence from duty which is not authorized nor approved, or for which a leave request has been denied. Recording an absence as AWOL is not a disciplinary action. However, AWOL can become the basis for initiating a disciplinary action.

3. What is “reasonable accommodation?” What is the Agency's obligation to provide “reasonable accommodation?”

Title I of the Americans with Disabilities Act of 1990 (ADA), requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.

The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities. Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles, or they may be procedures or rules. Reasonable accommodation removes workplace barriers for individuals with disabilities.

There are several modifications or adjustments that are not considered forms of reasonable accommodation. An employer does not have to eliminate an essential function, a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without accommodation, is not a “qualified” individual with a disability within the meaning of ADA. Nor is an employer required to lower production standards--whether qualitative or quantitative--that are applied uniformly to employees with and without disabilities.

The only statutory limitation on an employer's obligation to provide “reasonable accommodation” is that no such change or modification is required if it would cause “undue hardship” on the employer. “Undue hardship” means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.

4. Why is an employee's “probationary period” so important?

The probationary period is considered an extension of the examination process. The probationary period is used as fully as possible to determine the fitness of the employee and shall terminate his/her services during this period if he/she fails to demonstrate fully his/her qualifications for continued employment.

When an agency decides to terminate an employee serving a probationary or trial period because their work performance or conduct during this period fails to demonstrate their fitness or their qualifications for continued employment, it must terminate their services by notifying them in writing as to why they are being separated and the effective date of the action.

Terminated probationary employees have only limited appeal rights. They may appeal to the Merit Systems Protection Board (MSPB) if they believe the action is based on discrimination because of: (1) partisan political reasons (political affiliation) or marital status; or (2) race, color, religion, sex, national origin, disability, or age (at least 40 years of age at time of alleged discrimination) if such discrimination is raised in addition to (1).

5. Can my supervisor require/order that I perform a task that is not in my position description?

Yes, an employee must first comply with supervisory instructions. An employee does not have the unfettered right to disregard an order because there is substantial reason to believe the order is not proper; they must first comply with the order and then register their complaint or grievance, except when obedience would place the employee or others in a clearly dangerous situation.