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MSPB: Family Medical Leave Act (FMLA) leave.

MSPB: Family Medical Leave Act (FMLA) leave.

When are you entitled to take Family and Medical Leave Act (FMLA) leave? That answer depends in large part on the particular Agency you work for. Many Agencies have internal rules and procedures implementing FMLA – while they differ slightly from Agency to Agency, they can never be more strict than the requirements that appear below.

Under the Family and Medical Leave Act of 1993 (FMLA), most Federal employees are entitled to a total of up to 12 workweeks of unpaid leave during any 12-month period for the following purposes:

the birth of a son or daughter of the employee and the care of such son or daughter;

the placement of a son or daughter with the employee for adoption or foster care;

the care of spouse, son, daughter, or parent of the employee who has a serious health condition; or

a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her positions.

Your Agency may define the 12 month period in one of two ways. It can either be a calendar year or, in some situations, Agencies can use a “rolling 12 months”. Your 12 months would start on the first day you are granted any FMLA leave. Some Agencies do this to prevent employees from taking 12 weeks off in October-December of one year, and then January to March in the subsequent year.

Under certain conditions, an employee may use the 12 weeks of FMLA leave intermittently. An employee may elect to substitute annual leave and/or sick leave, consistent with current laws and OPM’s regulations for using annual and sick leave, for any unpaid leave under the FMLA.

When making the request, you need only two things: a request and a medical certification.

Although Agencies will often prefer that you use an SF-71 or its equivalent, the request for FMLA need not be on any particular form. In fact, an employer is supposed to provide you information about your rights and responsibilities under FMLA if the employer becomes aware of any circumstances which might qualify for FMLA. We recently settled a case with an Agency that fired an employee because she didn’t use SF-71 to request the leave. Needless to say, our client appealed the decision to the MSPB and was restored to the Agency rolls (although it took a day of a hearing before the MSPB to convince a very stubborn Agency to settle the appeal). The request should indicate the dates you would like to take off, that you are taking the time off for one of the qualifying events listed above, and should – if possible – give 30 days notice to the employer. The 30 day notice does not apply in all situations, as medical emergencies occur and 30 days notice is not always possible.

In addition to the request, you will need to provide a medical certification. Agencies sometimes put onerous burdens on what employees need to provide in their medical certification. This is improper. In order to ensure that your medical certification is not immediately rejected by your Agency, you should consider using the form found at this link. However, all that a medical certification requires under FMLA is the following items:

The date the serious health condition commenced;

The probable duration of the serious health condition or, if the condition is chronic, a statement that the condition is chronic, the patient is currently incapacitated, and the frequency of the symptoms;

Appropriate medical facts about the condition, the incapacitation and the treatment (this need only be a very general statement);

A statement that the employee is incapacitated for duty or is unable to perform at least one essential function of the job (you may need to provide additional statements if the FMLA leave is for treatment/care of someone other than yourself.)

Your doctor may balk at the idea of giving your employer too much information – and rightly so. Your medical matters are private, and the Agency is only required to know as little about them to properly maintain FMLA leave records. If you have any questions about whether your medical certification is sufficient under FMLA, give us a call or send us an email and we’d be happy to take a look at it.

Any leave granted under FMLA is typically Leave Without Pay (LWOP). You can substitute accrued annual or accrued sick leave for the LWOP so that you don’t experience a loss in pay.

FMLA is not meant to be a “gotcha”. Nor is meant to be difficult for employees to apply for and receive. Unfortunately, too many Agencies treat it as such and discipline employees for taking leave under FMLA. Common charges include AWOL, Failure to Properly Request Leave, Failure to Follow Leave Procedures, Failure to Follow Instructions, etc. If you feel you have been improperly denied FMLA, or feel you have been the victim of a disciplinary or other adverse action because you applied for or took FMLA, it is important to consult with a lawyer familiar with FMLA and your right to appeal to the Merit Systems Protection Board (MSPB).

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 to discuss the facts and law of your particular case. If you think that your Agency improperly denied FMLA or took an adverse action against you because you asked for or were granted FMLA leave, contact the Law Offices of Eric L. Pines, PLLC, to schedule a telephone consultation.