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Employee Relations Employee Relations FAQs

Providing an Opportunity to Improve

  • Although we focus a great deal in this booklet on supervisory responsibilities for informing and assisting an employee, the employee has the primary responsibility for improving his or her performance. An employee who gives the boss "the silent treatment" and refuses to accept any assistance runs the risk of failing to improve performance during the opportunity period and suffering the consequences. You may want to consider contacting your human resources office and asking if the agency uses trained mediators or facilitators to break through some communication problems. Regardless, an employee needs to be told what the expectations are for his or her performance and the consequences if these expectations are not met. Be sure to document your efforts to communicate these expectations and consequences.
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  • Generally, annual leave and leave without pay are discretionary based on the needs of the office and could be denied based on the importance of focusing on improving performance in the time allotted. However, sick leave, supported by acceptable documentation, must be approved as long as the employee follows agency procedures for requesting the leave. As noted earlier, you should be aware of certain programs under the Family and Medical Leave Act of 1993 and the Family Friendly Leave Act of 1994 that may require you to approve leave.
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  • There is no legal obligation to provide counseling to an employee before beginning an opportunity period because of the employee's unacceptable performance. However, it is always good management practice to talk to an employee when his or her performance begins to slip below the acceptable level. Hopefully, early counseling efforts would be successful and there would be no need for a formal opportunity period.
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  • The question of who is "disabled" under the law is one that is still confusing to experts. In most cases, you will want to turn over any documentation you receive from the employee to the human resources office so that they can obtain a physician's review of the employee's medical documentation. Once you get a decision from the medical experts that the employee's condition significantly impacts his or her ability to perform, you will need to carefully consider what the employee is requesting in the way of accommodation and assess whether or not you can provide the accommodation.
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  • We have provided a sample of an action proposed under Part 432 in the appendix to this booklet, but the real answer to this question lies in your agency. Each agency has a "culture" that defines the amount of information and documentation that will go into a proposal notice. At a minimum, your notice will state which regulation the action is being taken under, specify what critical performance element(s) the employee failed to meet, cite the evidence of unacceptable performance, and discuss the opportunity period (or the lack of one). The notice will also explain to the employee the time allowed for a written and/or oral response. Ask your human resources specialist for some samples of other performance-based notices to get a sense of what your agency requires.
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  • Because the meeting is not disciplinary or investigatory in nature, you are not obligated to allow union representation. The purpose of the meeting is to explain your expectations of the employee and describe any specific efforts you will be making to assist the employee in improving his or her performance. Although any employee who is being told that his or her work is unacceptable will view this as a negative process, it is a meeting to discuss methods of assisting an employee and is not disciplinary or punitive in nature.
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  • There is no requirement for formal classroom training. One option is to see how much of the training can be accomplished with the experts on your own staff. On-the-job training is probably the most common form of training provided during an opportunity period. Also, contact your agency training officer and find out what is available through self-instructional manuals, videos, or agency-funded training programs.
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  • Once you approve leave, you cannot hold the employee accountable for work that does not get done during the absence. In terms of short absences, you may not have to adjust the deadlines or requirements at all. However, if the employee is out for an extended time during the opportunity period, you may need to extend the opportunity period for the time of the absence to ensure that the employee has a chance to perform acceptably. Depending upon the nature of the work, an opportunity period shortened by approved absence may be valid if the work assignments and expectations were such that the employee still had the chance to demonstrate improved performance.
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