Nolan Espinda may have solved the problem of canceled inmate visitations due to sudden staff shortages in Hawaii prisons, but chronic absenteeism among correctional officers still hampers the state Department of Public Safety.

And the highest-profile day for that absenteeism is dead ahead: Super Bowl Sunday.

The propensity of guards to take unscheduled days off wreaked havoc on inmate visiting hours for years, peaking in 2014 when so many called in sick that 67 percent of visitations had to be called off at the last minute at the Oahu Community Correctional Center.

Espinda became director of the department in late 2014. Under his watch, no visiting hours have been canceled due to staff shortages at any of the state’s eight prisons and jails — except for one time at the Big Island prison in January 2015.

Did Espinda come up with a magic formula to solve the problem?

In 2014, 67 percent of inmate visitations at the Oahu Community Correctional Center were canceled. In 2015, no visitation was canceled because of staffing shortages.

In 2014, 67 percent of inmate visitations were canceled at the Oahu Community Correctional Center. But, in 2015, practically no visitations were canceled because of staffing shortages.

Cory Lum/Civil Beat

Not exactly.

It turns out, Espinda has yet to rein in the last-minute absenteeism  that led to the cancellations in the first place. The number of unscheduled absences on last year’s Super Bowl Sunday was illustrative: At OCCC, 74 correctional officers, accounting for nearly 35 percent of those scheduled to work that day, called in sick; at other facilities, an additional 177 people did the same.

Espinda says he has been trying to tackle the issue by encouraging correctional officers to swap their shifts with others when they have to take time off.

“Clearly our intent is to run visitations every weekend, whether there’s the Super Bowl or not.” — Nolan Espinda

The effort has had some success: Last year, the amount of paid overtime for the corrections division was reduced by nearly $1.6 million — from $9.6 million to about $8 million.

But some prisons and jails still have to resort to locking down one or more inmate modules so that enough correctional officers can be spared to cover visitations, and that policy is raising concerns among state legislators.

Espinda acknowledges the challenge. “It’s a constant battle every week. We monitor it every week. We plan it every week. We’re planning right now, knowing that the Super Bowl Sunday is a special day,” he said.

Family And Medical Leave Act A Big Factor

The unabated absenteeism among correctional officers is driven in part by a generous time-off policy written into their contract, allowing them 21 paid sick days a year, in addition to 21 vacation days and 13 holidays.

The federal Family and Medical Leave Act also allows those who have a serious illness or need to care for a new child or sick family member to take up to 12 weeks of unpaid time off a year without fear of losing their job.

Espinda’s predecessor, Ted Sakai, told Civil Beat in 2014 that the sheer number of correctional officers approved for FMLA had “neutered” reforms he was trying to make through an attendance program.

Department spokeswoman Toni Schwartz said 735 correctional officers were approved for FMLA leaves last year — 53 percent of the entire workforce.

Jeff Nowak, a Chicago attorney who specializes in employment law and maintains the blog, FMLA Insights that highlights notable FMLA cases, says that’s an “outrageously high percentage.”

OCCC Oahu Community Correctional Center visitors area2

On Super Bowl Sunday last year, more than a third of the 212 correctional officers scheduled to work at the Oahu Community Correctional Center were no-shows, but inmate visitations went on.

Cory Lum/Civil Beat

“Once I start seeing numbers in the double-digits, I get concerned whether FMLA abuse is an issue. So the fact that you’re seeing four to five times that amount is significant,” Nowak said. “For employers both in the private and public sectors, FMLA abuse is a very real problem. It creates a tremendous hardship on employers because they have to scramble to properly staff their workforce.”

When it was enacted more than 20 years ago, the FMLA was hailed as an important step toward guaranteeing the kinds of protections taken for granted in most developed countries. President Bill Clinton, who signed the act into law in 1993, called it “a matter of pure common sense and a matter of common decency.”

But there’s no shortage of reports documenting alleged FMLA abuse across the country.

“For employers both in the private and public sectors, FMLA abuse is a very real problem.” — Jeff Nowak, attorney and writer of FMLA Insights blog

Last April, a panel put together by Massachusetts Gov. Charles Baker found that “excessive absenteeism” among Boston transit workers — mainly through the use of FMLA leaves — was responsible for the bulk of more than 6,400 canceled bus trips during snow-heavy winter months.

To guard against potential abuse, Allegheny County in Pennsylvania pays $185,000 a year to a private contractor to help administer FMLA.

The contractor, UPMC WorkPartners, has medical professionals fielding the requests for FMLA leaves, and they can “seek clarity” if an employee, for instance, takes more days off than what a doctor’s note calls for.

Some efforts to crack down on potential abuse have been rejected by the courts.

In 2013, an appeals court in New Jersey ruled that Burlington County interfered with a police officer’s rights under FMLA when it required him to provide a new doctor’s note each time he took time off to take care of his son, who suffered from sickle cell disease.

Lockdowns Concern Legislators

To become eligible for FMLA in Hawaii, state employees must fill out a one-page application and submit a doctor’s certificate within 15 days of an initial request.

Once approved, those taking intermittent FMLA leaves don’t have to submit a doctor’s note each time they take time off under a union contract — unless it’s for a period exceeding five days.

Espinda says he and other administrators at the Public Safety Department are limited in what they can do to safeguard against abuse.

“The family medical leave is a federal statute strictly controlled under the rules and regulations set forth by the federal government,” Espinda said. “We strictly enforce those rules to the extent we can. And, if there are abuses, we proceed on those. But it is designed to provide people the opportunity to care for themselves and family members — we certainly respect their right for that.”

Dept of Safety Director Nolan Espinda. 29 july 2015. photograph Cory Lum/Civil Beat

Nolan Espinda has figured out how to avoid canceling inmate visitation hours, but not how to alleviate chronic absenteeism among correctional officers.

Cory Lum/Civil Beat

Espinda adds: “The union is fully cooperating with us on this. There are a lot of employees who need the time off. If they need the time off, we need to work with them within their contract so that we can meet our needs, and they can meet their needs.”

Dayton Nakanelua, state director of the United Public Workers, which represents correctional officers, did not respond to Civil Beat’s request for comment

For now, Espinda’s strategy is confined to simply urging correctional officers to swap their shifts with willing colleagues.

“Those who are locked down are also at the disadvantage. If that’s the way you’re reducing the overtime pay to allow visitation, that’s something that we should know about.” — State Sen. Donna Kim

He said this has resulted in leaves of all kinds taken by correctional officers to drop from a monthly average of four days apiece in 2014 to three days apiece in 2015.

“Just talking to them and encouraging them to do that, as opposed to simply taking an unscheduled leave, has really helped us be successful in keeping the programs working,” Espinda said.

But when he told members of the House and Senate public safety committees last week that his department often has to resort to temporary lockdowns to accommodate visitations, the tactic raised some eyebrows.

State Sen. Donna Kim, chair of the Senate Committee on Government Operations, asked Espinda to provide more information about how often the lockdowns are used.

“We really need a good picture as to what some of the solutions are to see whether or not they should be continued,” Kim told Espinda. “Those who are locked down are also at the disadvantage. If that’s the way you’re reducing the overtime pay to allow visitation, that’s something that we should know about.”

Kat Brady, coordinator of the Community Alliance on Prisons, says the Legislature should commission a study to see if FLMA abuses are found at any state agencies.

“FMLA is a great law that is about strengthening families,” Brady said. “There should be a consistent set of criteria for those accessing FMLA across all agencies. I don’t know if police, fire, hospital staff have the same problems as (correctional officers), but an analysis would help to see if they are abusing the law.”

Meanwhile, Espinda says he is cautiously optimistic that no visitations will have to be canceled Sunday.

“I can’t promise, but clearly our intent is to run visitations every weekend, whether there’s the Super Bowl or not,” he said.

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