COMPILED BY: OPM  Employee Relations Division 
APPROVED LEAVE

As a general rule, an agency may not take an adverse action against an employee based on the employee's use of approved leave.

Wilkinson v. Air Force, 68 M.S.P.R. 4 (1995) 
Webb v. USPS, 10 M.S.P.R. 536 (1982) 

There is a very rare exception to that rule and the Board has identified specific criteria that must be met when removing an employee on approved leave under this exception:
1. The employee must be absent for reasons beyond his or her control; 2. the absence must have continued beyond a reasonable period of time and the agency must warn the employee of possible adverse action if the employee does not return to duty; and 3. the agency must show that it needs the employee's services on a regular schedule.

Allen v . Army, 76 M.S.P.R. 564 (1997)
Gaskins v. Air Force, 36 M.S.P.R. 331 (1988)
Cook v. Army, 18 M.S.P.R. 610 (1984)

The Board looks for proof of circumstances such as serious injury or illness to support a finding that absences are actually outside the employee’s control. In the cited case, the agency thought the employee’s depression and other issues associated with an abusive relationship did meet the exception criteria, but absent documentary proof, the Board considered them "personal problems," presumed to be within her control.
Smisson v. Air Force, 85 M.S.P.R. 427, (2000)
The Board has also clarified that it applies the exception criteria only in situations where the employee is using LWOP. It specifically denied the use of the exception in a situation where the employee was using approved sick leave.

Holderness v. Defense Commissary Agency, 75 M.S. P.R. 401 (1997)

 

ABSENCE WITHOUT APPROVED LEAVE (AWOL)

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An agency may take an adverse action against an employee only for such cause as will promote the efficiency of the service (5 U.S.C. 7513 (a)). The Board and the courts have long held that an employee's unauthorized absence, by its very nature, adversely affects the agency's ability to accomplish its mission and that disciplinary action based on a charge of unauthorized absence is warranted to promote the efficiency of the service.

Roberson v. Veterans Affairs, 27 M.S. P.R. 489 (1985) 
Desiderio v. Navy, 4 M.S.P.R. 84 (1980) 

To prove a charge of AWOL, the agency must show that the appellant was absent, and that his absence was either not authorized, or that his request for leave was properly denied.

Digiulio v. Treasury, 66 M.S.P.R. 659 (1995) 
Castellanos v. Army, 62 M.S.P.R. 315 (1994) 
Boscoe v. Agriculture, 54 M.S.P.R. 315 (1992) 
Staten v. USPS, 26 M.S.P.R. 206 (1985) 

The Board may sustain a charge of AWOL even when the agency fails to prove that the employee was AWOL for the entire period charged by the agency.

Senior v. USPS, 85 M.S.P.R. 283 (2000) 
Young v. Veterans Affairs, 83 M.S.P.R. 187 (1999)

It is permissible to take an adverse action for AWOL and failure to follow established leave procedures, even in cases where the absence is later approved by the agency or a third party. In cases where the unauthorized absence is ultimately approved, the Board will sustain the agency's charge of failure to follow established leave procedures as long as the employee was on proper notice of the established procedures.

Wilkinson v. Air Force, 68 M.S.P.R. 4 (1995)
Fleming v. USPS., 30 M.S.P.R. 302 (1986)

However, distinguish Westmoreland v. DVA, 83 M.S.P.R. 625 (1999). In that case, the Board applied long-standing charging rules and found the two charges must be merged because the agency gave as its sole reason for the AWOL charge the employee's failure to follow leave requesting procedures. In supporting the two charges, an agency must distinguish the lack of approval that supports the one charge from the failure to follow specific rules that supports the other.

Law enforcement officials may be held to a higher standard of conduct than other Federal employees, even for charges of AWOL.

Hartigan v. Veterans Affairs, 39 M.S.P.R. 613 (1989) 

In very rare cases, an agency can charge AWOL even if an employee is physically present, on the basis that the employee is not reporting for duty at the location where he is assigned. These situations are unique and there is little case law to review. For example, an AWOL charge was sustained in a case where appellant reported for duty but left the worksite. Evidence supported the finding that the employee was required to request leave for his absence and that he was properly charged with failure to obtain leave for his absence.

Meads v. Veterans Affairs, 36 M.S.P.R. 574 (1988)

A charge of AWOL was sustained for appellant who failed to report to work for a temporary duty assignment, notwithstanding the fact that he continued to report to duty at his previous office. The Board held that an employee cannot choose where to work in derogation of an agency order.

Rodriquez v. Agriculture, 27 M.S.P.R. 78 (1985) 

Removal of appellant is sustained in case where employee failed to report for assigned overtime work.

Abrams v. Navy, 12 M.S.P.R. 515 (1982), aff'd 22 M.S.P.R. 40 (1984)
Farrell v. Veterans Administration, 14 M.S.P.R. 94 (1982) 

A charge of AWOL cannot be sustained if the employee's claim with the Office of Workers' Compensation (OWCP) is approved.

Walley v. Department of Veterans Affairs, 87 M.S.P.R. 236 (2000)
Parkinson v. USPS, 55 M.S.P.R. 552 (1992) 
Mainor v. Navy, 38 M.S.P.R. 528 (1988) 
Stith v. HUD, 21 M.S.P.R. 328 (1984) 

INABILITY TO MAINTAIN A REGULAR WORK SCHEDULE

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In some cases involving extensive absence, it may be useful to include a secondary charge highlighting the fact that the employee has not been successful in maintaining his or her regular work schedule. Any decision regarding what charge to bring in an adverse action is highly dependent upon the facts presented in the situation. Additionally, an agency’s rules and practices have a great deal to do with the charges that can be sustained on appeal. For example, in the cases involving U.S. Postal Service cited below, the charge of "inability to maintain a regular work schedule" is linked to attendance requirements found in that agency’s collective bargaining agreement.

Ramey v. USPS, 70 M.S.P.R. 463 (1996) 
Lucas v. USPS, (1989) 39 M.S.P.R. 459 (1989) 
Simms v. USPS, 39 M.S.P.R. 308 (1988) 
Hayslett v. USPS 18 M.S.P.R. (1988) 
Henderson v. USPS, 36 M.S.P.R. (1987)
Krainz v. Army, 33 M.S.P.R. 554 (1987)
Fleming v. USPS, 30 M.S.P.R. 302 (1986) 
Rabago v. Army, 28 M.S.P.R. 403 (1985)

ANNUAL LEAVE

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A supervisor has the discretion to approve or disapprove the use of accrued annual leave based upon the work needs of the office. In cases where annual leave has been denied and adverse action is taken based on an AWOL charge, the Board will review the agency's decision to ensure that the leave was properly denied.
Dobert v. Navy, 74 M.S.P.R. 148 (1997)
The issue of approval or denial of annual leave in situations where an employee is incarcerated has been raised at the Board in several cases. For example, the agency in Benally erred when it converted approved leave to an unapproved status solely because the absence was to serve a jail sentence. Having determined it did not need the employee’s services for the period, the agency was without discretion to disapprove the leave. 

Benally v. Interior, 71 M.S.P.R. 537 (1996) 
Pearson v. Navy, 8 M.S.P.R. 405 (1981) 

This is in contrast to the Board's position when the employee facing incarceration does not have annual leave available. The Board has found that the agency need not approve LWOP to cover a period of incarceration nor does it have to justify its decision.

Johnson v. DLA, 54 M.S.P.R. 370 (1992) 
Hawkins v. Navy, 49 M.S.P.R. 501 (1991) 

When an employee is incarcerated, an agency is not required to participate in a prison work-release program (absent any agency regulation to the contrary). An AWOL charge will be supported, even though the agency could have chosen to have the employee work.

Huettner v. Army, 54 M.S.P.R. 472 (1992) 
Abrams v. Navy, 22 M.S.P.R. 480 (1984) 

Removal for AWOL was sustained when the appellant was sentenced to 10 years imprisonment and was immediately placed under custody of the state authorities and, as a result, was unable to report to duty.

Rojas, Jr. v. USPS, 74 M.S.P.R. 544 (1997)

SICK LEAVE

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Generally, employees have a right to use sick leave as needed for proper reasons. Moreover, an agency is required to grant sick leave to an employee who provides administratively acceptable evidence that he or she is incapacitated for the performance of duties due to illness or injury. However, an agency may disapprove sick leave in nonemergency situations or if an employee does not submit administratively acceptable evidence. An employee must apply for sick leave within the time limits set by the agency. In addition, an agency may request administratively acceptable evidence for any duration of sick leave.

Rison v. Navy, 23 M.S.P.R. 118 (1984) 

Documentation that supports an absence for sick leave purposes may be presented as late as the Board hearing and if the Board finds the documentation to be administratively acceptable, an agency’s AWOL charge would be reversed.

Carr v. Department of Defense, 61 M.S. P.R. 172 (1994) 
Riley v. Army, 53 M.S.P.R. 683 (1992) 
Goens v. Army, 40 M.S.P.R. 456 (1989) 

LEAVE WITHOUT PAY (LWOP)

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Agency authorization of LWOP is a matter of discretion and employees are not entitled to it as a matter of right.

Johnson v. DLA, 54 M.S.P.R. 370 (1992) 
Kelmon v. Justice, 27 M.S.P.R. 581 (1985) 

Note: For decisions on the Family and Medical Leave Act of 1993 (FMLA), refer below under "Family and Medical Leave Act."

DENIAL OF LWOP

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When an agency bases a disciplinary action on a charge of AWOL because of a denial of LWOP, the circumstances of the denial will be reviewed by the Board to determine if the denial was reasonable. A denial of LWOP may be supported when there is no foreseeable end in sight to the absence and the agency demonstrates that the ongoing absence has resulted in a burden to the agency.

Young v. Veterans Affairs, 83 M.S.P.R. 187 (1999)
Bologna v. Department of Defense, 73 M.S.P.R. 110 (1997) 
Joos v. Treasury, 69 M.S.P.R. 398 (1996) 
Joyner v. Navy, 57 M.S.P.R. 154 (1993) 
Fisher v. Department of Defense, 54 M.S.P.R. 675 (1992) 
Haine v. Navy, 41 M.S.P.R. 462 (1990) 
Henderson v. USPS, 36 M.S.P.R. 11 (1987) 
Lehnerd v. OPM, 27 M.S.P.R. 525 (1985) 
Kamer v. Navy, 6 M.S.P.R. 184 (1981)

VOLUNTARY LEAVE TRANSFER PROGRAM

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Where the denial of leave is reasonable because there is no foreseeable end in sight to the absence, it is not improper for an agency to deny the use of donated annual leave under the leave transfer program.

Joyner v. Navy, 57 M.S.P.R. 154 (1993) 
Jones v. Transportation, AT0752200-0398-I-1, November 28, 2000 (Initial Decision)

FAMILY AND MEDICAL LEAVE ACT (FMLA)

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*IMPORTANT NOTES! 
(1)When researching decisions under this topic, agencies are reminded that cases involving the U.S. Postal Service may not be precedential for any other Federal agency. The Postal Service is covered under Title I of the FMLA (coverage primarily for "private sector" employees) but most Federal employees are covered under Title II of the Act. While the general intent of the law is the same under both titles, there are specific important differences. Any holding on FMLA where the Postal Service is a party to the case should be reviewed carefully for applicability elsewhere in the Federal service. 

(2) Additionally, a number of the FMLA cases below apply DOL regulations to employees who were not under those regulations, on the basis that OPM did not at that time have final rules in place. Agencies covered by OPM regulations must carefully research and apply the regulations in place at the relevant time(s) and be prepared to put them in the record in the event of a challenge.*

The Board held that it has jurisdiction over FMLA claims and that because FMLA has its own leave requesting procedures, an AWOL charge will be reviewed in light of an appellant's right to absence under the Act. FMLA does not augment an employee's leave balance; rather, it only entitles an employee to approved absence, under which the employee could substitute accrued paid leave.

Jefferies v. Navy, 78 M.S.P.R. 255 (1998) 
Joos v. Treasury, 74 M.S.P.R. 684 (1997)
Crutchfield v. Navy, 73 M.S.P.R. 444 (1997) 
Ramey v. USPS, 70 M.S.P.R. 463 (1996) 

Recent decisions by the Board have placed a burden on the agency to inquire whether an employee's request for leave constitutes a request under FMLA.

Burge v. Air Force, 82 M.S.P.R. 75 (1999)
Fairley v. USPS, 82 M.S.P.R. 588 (1999) 
Gardner v. USPS, 79 M.S.P.R. 9 (1998) 
Gross v. Justice, 77 M.S.P.R. 83 (1997) 

An employee is not required to explicitly invoke FMLA in requesting covered leave. It is sufficient that the employee make the agency aware of circumstances that would warrant leave under FMLA.

Covington v. Army, AT0752000124-I-1, April 22, 2000
Landahl v. Commerce, 83 M.S.P.R. 40 (1999) 
Gross v. Justice, 77 M.S.P.R. 83 (1997) 
Ellshoff v. Interior, 76 M.S.P.R. 54 (1997)

An agency may apply its own leave procedures to leave requests under FMLA but an agency may not apply a more restrictive leave policy than that provided under FMLA.

Burge v. Air Force, 82 M.S.P.R. 75 (1999)

The U.S. Court of Appeals for the Fourth and Ninth Circuits have ruled that Federal employees (covered by Title II of FMLA) who believe their rights under FMLA have been violated must pursue a remedy through appropriate grievance procedures and may not file suit against the Government in court.

Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997)
Russell v. United States, 191 F.3d 1016, (9th Cir. 1999)