Excessive Absences Charge

The Merit Systems Protection Board (MSPB) recently set a new precedent when it upheld an employee's removal based on alleged excessive absences in the case Linda McCauley v. Department of the Interior, 2011 MSPB 59 (June 10, 2011). The Board definitively ruled that an agency may not consider Family Medical Leave Act (FMLA) absences as "a part of the equation when evaluating if an employee has taken excessive leave." The Board further held that whether the leave used to support an agency's claim of excessive absences is based on "sick leave, annual leave, LWOP, or AWOL will not be dispositive to a charge of excessive absences." To support its position, the Board claimed "the efficiency of the service may suffer in the absence of an employee's services, regardless of the type of leave used."

The decision in the McCauley case cleared up inconsistency in the Board's precedent regarding what leave can be used to support a charge of excessive leave use. Prior to its decision in the McCauley, the Board held in different decisions that an agency can and cannot discipline an individual for approved sick leave. The Board's ruling in McCauley expressly overruled all cases to the extent that they held or implied rulings contrary to the bright-line rule promulgated in McCauley.

The agency removed McCauley based on two charges: excessive absences and AWOL. The first charge alleged that McCauley was absent for 136 workdays on approved leave, including FMLA absences, but not periods of AWOL. The second charge alleged that McCauley was AWOL for 22 days. The Board held that the agency improperly supported its claim of excessive absences with McCauley's FMLA absences. The Board justified its prohibition on the use of FMLA absences to support an excessive absences charge by stating "Congress's clear intent when enacting FMLA was to provide job security for individuals who needed to be temporarily absent due to a serious medical condition (whether their own or that of a family member addressed by the FMLA legislation) and the law unambiguously promises this job security."

McCauley's removal was nonetheless upheld based solely on the agency's AWOL charge. The Board held that the excessive absences charge could not be sustained due to the agency's failure to meet its burden of proof.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com .