An Agency can take disciplinary action or adverse action against a Federal Employee for being Absent Without Leave (AWOL). Rarely, however, is the Federal Employee both absent from work and absent without approved leave. Adverse actions involving AWOL before the MSPB often involve questions of doctors’ appointments, improper denials of annual and/or sick leave, etc.
Therefore, if an Agency takes an adverse action against a Federal Employee for AWOL, it must prove its charges before the MSPB. In order to prove its charges of unauthorized absence (AWOL) before the MSPB, an Agency must prove the following elements:
1) That the Federal Employee was absent, and
2) That the absence was unauthorized, or
3) That a request for leave was properly denied.
As a general rule, an Agency’s approval of leave precludes it from taking an adverse action on the basis of such absences. However, this is not always true, and you should discuss your situation with a lawyer familiar with the MSPB if you have been given an adverse action based on approved leave.
Often times, the question of leave under the FMLA is an issue in MSPB cases. Read the Law Office of Eric L. Pines MSPB Appeal Blog entry on the Family and Medical Leave Act (FMLA) by clicking on the underlined text.
Additionally, Agencies often couple charges of AWOL with charges of Failure to Follow Leave Procedures. If the Agency uses the same specifications to support a charge of AWOL and a charge of Failure to Follow Leave Procedures, the issue of merger arises. If you have been charged with both AWOL and Failure to Follow Leave Procedures for the same instances, you should consider discussing your situation with a lawyer familiar with the 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 your Agency has taken an adverse action against you charging you with AWOL, Failure to Follow Leave Procedures, improper denial of leave under the FMLA, or some other leave-based adverse action, contact an attorney familiar with MSPB appeals.
Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.
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