2126 - Absence Without Leave (AWOL)

The AWOL statute provides that absence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked.

Statement

To invoke the AWOL statute, it is only necessary for the appointing power to demonstrate that the employee missed five consecutive working days without obtaining leave. “Leave” means permission from the employee’s supervisor to be absent; it does not mean “leave time on the books.”

Application

The following process should be followed when applying the AWOL statute:

1. AWOL Notice: A written notice should be sent to the employee’s last known address. This notice should be given prior to invoking the AWOL statute, and should contain:
   • the date the AWOL statute will be invoked;
   • the effective date of the automatic resignation (last day worked);
   • the right to request an informal “Coleman” hearing;
   • the timeframes for requesting the informal “Coleman” hearing and reinstatement; and
   • the right to request reinstatement from the California Department of Human Resources (CalHR).
     (A sample notice letter can be found under Resources below.) A “Proof of Personal Service” or “Proof of Service by Mail” must be sent with the notice.
2. Informal “Coleman” Hearing: The AWOL notice should include an effective date that allows the employee reasonable time to request a “Coleman” hearing before the separation is finalized. This hearing is informal and should be conducted by an impartial and disinterested representative of the appointing power (Coleman Officer). The term “impartial and disinterested” means that the Coleman Officer is someone not involved in the original decision to AWOL separate the employee. The Coleman Officer must determine if the employee was absent for five consecutive working days and if the absence was without leave. Once this determination is made, the Coleman Officer is empowered by the appointing power to sustain or rescind the separation, or submit their recommendation to the appointing authority for consideration.
3. Request to CalHR for Reinstatement: The AWOL statute provides, that CalHR may reinstate an employee who was separated from their position by automatic resignation if the employee makes a satisfactory explanation to the department (CalHR) as to the cause of his or her absence and his or her failure to obtain leave therefor. The employee must request reinstatement within 15 days of the formal service of the notice of AWOL separation plus five additional days if the notice was sent by mail within California. The request to CalHR may be made irrespective of whether the employee requested a “Coleman” hearing with his or her appointing power. Formal service is the date the notice was mailed or personally served on the employee. If the employee was not provided a written AWOL notice, the employee has 90 days from the effective date of the separation to request reinstatement.

CalHR will schedule a hearing within a reasonable amount of time to examine the reasons for the absence and why leave approval was not obtained. If CalHR determines that reinstatement is appropriate and that the employee is “ready, able, and willing" to return to work, CalHR may reinstate the employee.

Prior to invoking the AWOL statute, review the applicable MOU to determine if it contains provisions at variance with this statement.

SAMPLE AWOL NOTICE LETTER

Dear (Employee Name):

Please take notice that effective (date in the future reasonably calculated to give the employee notice and opportunity to respond) (your department) intends to invoke the absent without leave (AWOL) statute (Government Code, § 19996.2) because you have been absent without leave for five consecutive working days. You have been absent from (date) to (date), and that absence was without leave.

If you disagree with these facts, you may request an informal hearing to be held prior to (specify the effective date your department intends to finalize the separation). To request an informal hearing, contact (name, address, phone number of the Coleman officer). At the hearing you will have an opportunity to explain why you disagree with this intended decision. If the AWOL separation is finalized, you will be considered to have resigned on (date), your last day of work.

Whether or not you respond to your department to request an informal hearing, you still have the right to file a written request for reinstatement with the California Department of Human Resources (CalHR), 1515 S Street, North Building, Suite 500, Sacramento, CA 95811, within fifteen (15) calendar days of service of this notice. You have five (5) additional days if the notice was sent by mail within California. If you file a timely request, CalHR or its authorized representative will hold a hearing within a reasonable time.

Authorities