Excessive Leave vs. Medical Inability to Perform

So you are a federal employee who has taken a lot of sick, annual, or FMLA leave. In fact, you maybe have taken LWOP or have been marked AWOL. What happens when your agency says they are not willing to be patient anymore??? If the agency wants to follow federal law they have a few choices. The first option the agency can choose is to remove the employee for Medical Inability to Perform the Essential Functions of His or Her Job. Another option available to the agency is to take disciplinary action against the employee for Excessive Leave. Depending on the path the agency takes the employee will have to navigate to very different paths.

Did you know that as a federal employee you have due process right in your job? What that means is that the federal government cannot just fire you without taking some type of disciplinary, performance-based, or non-disciplinary action. That can be very good news for you as a federal employee because the agency must propose your removal and give you the opportunity to reply and/or hire a federal employee attorney who is educated in the law to assist you.

Furthermore, if the agency chooses to remove you they must select a basis to remove you. Depending on the basis of this removal there are a number of responses and actions you can take that can greatly benefit you in either keeping your job or seeking disability retirement.

Consequences of the Federal Removal Charges

As described in Fox v. The Department of the Army 120 MSPR 529 (2014) (citing Cook v. The Department of the Army 84 MSPR 5013 (1984)), if the agency chooses to remove the employee for Excessive Absence, the agency has the burden of showing that: 1) The Employee was absent for compelling reasons beyond his or her control such that the agency granting or not granting leave is immaterial, 2) the absence continued beyond a reasonable time, and the agency warned the employee that an adverse action might occur (i.e. draft a formal letter stating such), and 3) the position needed to be filled by an employee available for duty on a regular or part-time basis.

Removal for conduct has many negative repercussions as compared to removal for Medical Inability as will be described in the next blog. If you are a federal employee who has been removed for excessive absences it is important to speak to a federal employee attorney who can advise you on your appeal rights.