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MSPB and EEOC: Can the Agency make a Federal employee take leave indefinitely?

MSPB and EEOC: Can the Agency make a Federal employee take leave indefinitely?

If an Agency places an employee on indefinite enforced leave, the Merit Systems Protection Board (MSPB) may have jurisdiction to review this action.

Typically, an Agency will place an employee on enforced leave, pending the results of a voluntary or involuntary application for medical/disability retirement, or in other scenarios where the Agency has questions (legitimate or not) about an employee’s medical inability to perform the essential functions of the job.

An Agency may place an employee on enforced leave pending inquiry to see whether he has become medially able to work. However, once an agency learns that the employee is fit for duty, the employee must be restored immediately to active duty status.

The MSPB might find enforced leave to be appropriate when the Agency believes that the employee’s retention on active duty could result in damage to federal property, or be detrimental to governmental interests, or be injurious to the employee, his fellow workers, or the public.

However, the MSPB has held that indefinite enforced leave is almost always tantamount to depriving the worker of a job, when there is no review other than the Agency’s own arbitrary choice to change its mind that the employee can perform his job. This is even more true when the employee is ready, willing and able to work.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals or Complaints of Discrimination to the Equal Employment Opportunity Commission (EEOC) to discuss the facts and law of your particular case. If your Agency has required you to take a Fitness for Duty exam, or if you have been directed to take annual or sick leave or LWOP for an indefinite period of time, contact an attorney familiar with MSPB appeals and Federal Employee EEO Complaints.