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FMLA Leave and EEO Issues

FMLA Leave and EEO Issues

Many employees approach me and say that they need some time off from working from working for the Federal Government for a serious medical condition for themselves or a family member. The Family and Medical Leave Act provides that employees may substitute annual and/or sick leave for part of their entitlement to up to 12 weeks of leave without pay. If an employee requests available annual leave for a purpose that qualifies under the FMLA, this leave must be approved. 5 CFR 630.1205 (FMLA Title II employees) and 29 CFR 825.301 (U.S. Postal Service and other Title I employees).

A regular full-time employee may substitute up to 26 administrative workweeks of sick leave for unpaid FMLA leave under 5 USC 6382(a)(3) for leave to care for a covered employee during a single 12-month period. A part-time employee or an employee with an uncommon tour of duty, the employee may substitute an amount of sick leave equal to 26 times the average number of hours in her scheduled tour of duty each week. 5 CFR 630.403.

If an employee requests sick leave for a purpose that may qualify under the FMLA, this request should be temporarily treated as an FLMA request. Ellshoff v. Department of the Interior, 97 FMSR 5348, 76 MSPR 54 (MSPB 1997). However, under Title II, employees cannot be forced to take FMLA leave, since under 5 USC 6382(d), the substitution of paid leave for unpaid FMLA leave is at the employee’s election. Employees may use annual and/or sick leave for purposes that would qualify for FMLA leave, and then take their FMLA entitlement as unpaid leave. This is known as “leave stacking.”

Agencies may request the rescheduling of FMLA leave for expected medical treatment because of agency work requirements, but rescheduling must be acceptable to the employee’s health care provider. 5 CFR 630.1206(b) (for Title II) and 29 CFR 825.302(e) (for Title I).

An employee may have a claim under EEO law where an agency improperly denies an annual and/or sick leave request which is requested as a reasonable accommodation of a disability (or of an employee’s religious beliefs or practices). In fact, a denial of leave may be discriminatory under EEO law even when reasonable accommodation is not involved if the employee can show that similarly situated employees who were not members of the complainant’s protected group were treated more advantageously in approval of their leave requests. In such cases, the employee must also rebut the agency’s explanation of its action. If have an FMLA issues or Federal Disability related contact the Law Offices of Eric L. Pines, PLLC at 832-533-3242.

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The Law Offices of Eric L. Pines represents US Federal Employees before the EEOC, MSPB, FLRA, OSC and Union Grievances as well as assisting them with obtaining their disability benefits claims from OPM and the MSPB. The Law Offices of Eric L. Pines, Esq. represents federal employees nationwide and wherever else they may be stationed.

Mr. Pines has a unique and special interest in assisting disabled federal employees in obtaining reasonable accommodations, freedom from discriminatory treatment and OPM Disability Benefits if necessary. Mr. Pines and his firm have experience drafting over 70 EEO Final Agency Decisions as well as representing 100’s of employees in navigating the EEO Reasonable Accommodation and OPM Disability landscape.

If you are a Federal Employee or former Federal Employee we believe it is very important that you consider hiring an attorney with specific experience handling such claims in the federal employee landscape. The federal legal system is unique and unlike any other legal system as it has many procedural and legal differences from non-federal employment law. The time and money it takes to hire an attorney who does not have federal sector experience and have them get up to speed in the federal sector legal environment can often waste valuable time and financial resources for the unknowing federal employee. It is often a much better value and much less frustrating to hire someone who solely practices in the federal employee labor and employment field. Attorney Eric L. Pines has practiced solely in the federal employee field for over 17 years. For a review of recent successful case decisions please see the following link.

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice.

The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case.

It is very important that the Law Offices of Eric L. Pines, PLLC notes that each and every Federal Employee’s claim is different. Just because the Law Offices of Eric L. Pines, PLLC was able to secure substantial past-due benefits for one Federal Employee does not mean or imply that we will be able to do so for you. In some cases, the Law Offices of Eric L. Pines, PLLC may not be able to secure any financial compensation or past-due benefits due to the facts or law of your particular case.