At first glance, it looks as though Nolan Espinda has found a solution to an intractable problem.

For years, the Hawaii Department of Public Safety had been plagued by chronic “absenteeism” among its correctional officers, a problem that led to cancellations of inmate visitations at an alarming frequency.

The uptick in the number of the cancellations peaked in 2014, when so many correctional officers called in sick that 67 percent of visitations had to be called off at the last minute.

But Espinda, who took the helm of the department in late 2014, changed that.

Under Espinda’s watch, no visitation has been called off at any of the state’s eight prisons and jails, except for one cancellation at the Big Island prison in early January 2015.

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

Not really.

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 at the Oahu Community Correctional Center were canceled. In 2015, no visitation was canceled because of staffing shortages.

Cory Lum/Civil Beat

It turns out that Espinda has yet to rein in the underlining issue: The last-minute absenteeism — what was driving the cancellations in the first place — is still rampant among correctional officers.

The number of unscheduled absences on last year’s Super Bowl Sunday was illustrative: At the Oahu Community Correctional Center, 74 correctional officers — accounting for nearly 35 percent of those scheduled to work that day — called in sick; at other facilities, an additional 177 correctional officers 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 a time-off.

The effort has led to some success: Last year, the amount of overtime payments 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 modules temporarily, so that enough correctional officers could be spared to cover visitations.

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 because a generous time-off policy is written into their contract, allowing them to take 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 the fear of losing their job.

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

According to Toni Schwartz, public safety spokeswoman, 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 a blog FMLA Insights that highlights notable FMLA cases, says that’s an “outrageously high percentage.”

“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.”

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

But proponents of FMLA contend the statute is not an extravagance invented to encourage absenteeism.

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

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

In April, for instance, 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 last year.

To guard against potential abuse, Allegheny County in Pennsylvania is now paying $185,000 a year to a private contractor to help administer FMLA, so that the program can run “efficiently and effectively.”

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.

But 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 for his son, who suffered from sickle cell disease.

On Super Bowl Sunday last year, 74 correctional officers called in sick at the Oahu Community Correctional Center.

On Super Bowl Sunday last year, 74 correctional officers called in sick at the Oahu Community Correctional Center. But inmate visitations still occurred

Cory Lum/Civil Beat

Lockdowns Concern Legislators

To get approved for FMLA in Hawaii, state employees are required to 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 a time-off under a union contract — unless it’s for a period of five days or longer.

Espinda says he and other administrators at the Department of Public Safety 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.”

“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,” Espinda said.

Dayton Nakanelua, state director of the United Public Workers, 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.

But Espinda says this has led the amount of leaves of all kinds — including vacation, FMLA leaves and sick days — taken by correctional officers to drop from a monthly average of four days in 2014 to three days 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.

Still, Espinda 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 — a tactic that 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.”

For her part, 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. There should be a consistent set of criteria for those accessing FMLA across all agencies,” Brady said. “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 visitation would have to be canceled on this weekend’s Super Bowl Sunday.

“We hope for the same thing as the last year. I can’t promise, but clearly our intent is to run visitations every weekend, whether there’s the Super Bowl or not,” Espinda said.

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