What happens when your federal agency decides that an employee has taken too much leave? 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.
As described in Fox v. The Department of the Army 120 MSPR 529 (2014) (citingCook 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.