AWOL (Absence Without Leave) provision in California Government Code is the law that allows public employers to deem employees who miss a certain amount of days (usually five days or more) from work without “approved leave” to be deemed as having “automatically resigned” from their employment with a county or State agency. Generally, a State can invoke AWOL resignation after an employee has not been reporting to work for five or more consecutive days without approved leave. Invoking AWOL is optional on the part of the state. In other words – management has an option to initiate AWOL separation process, but they are not obligated to do so, and they are certainly not obligated to do so as soon as they can. “The absence without leave becomes an automatic or constructive resignation only if the state decides to invoke the status.” Coleman v Department of Personnel Administration (1991) 52 Cal.2d 1102, 1117.
It’s not uncommon for AWOL rules to conflict with the California FEHA disability laws. Here is a typical situation. A State employee goes on an approved medical leave in connection with his known medical condition or disability. Upon expiration of leave that employee feels that he is unable to return to work yet because of his continuing pain and resulting medical restrictions. The employee submits his updated medical note extending his medical leave to his supervisor. However, that supervisor says that the note submitted is insufficient, because it’s missing certain information, or that supervisor refuses to accept that note for some other reason. The employee goes back to the doctor to get the new note, but by the time the doctor sees that employee and issue the updated note, over five days of “unapproved absence” have elapsed, and the employer invokes AWOL resignation, effectively terminating that employee.
In this kind of situation, it’s important to keep in mind that AWOL cannot supersede or override state disability laws. For instance, arbitrarily deciding not to approve the additional leave requested because of the technicality in the medical note submitted is not going to absolve the employer from liability for the obvious violation of disability discrimination laws. Refusing to wait for a few more days for the disabled or sick employee to submit the documentation requested by the employer is also going to be evidence of disability discrimination. For more information how to avoid being AWOL terminated while you are on medical or disability leave, be sure to read about AWOL Termination and Disability Rights.
If you have been AWOL separated from State or County service in the Sacramento area while being on disability leave and despite your diligent efforts to inform your employer of your medical condition and of your continuing need for leave, you might have a basis for making a wrongful termination claim against your employer. If you would like to discuss your legal options after being terminated to determine whether an AWOL wrongful termination claim can be made in your situation, to contact us to go evaluate your potential claims and go over your legal and practical options.