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There are, generally, four major leave-based adverse actions that a Federal Employee can challenge to the Merit Systems Protection Board ( MSPB).


2) Failure to Follow Leave Requesting Procedures

3) Excessive Use of Approved Leave/Abuse of Leave

4) Enforced Leave

Click on the underlined text to read more about each charge and the elements. When challenging an adverse action based on approval, disapproval, use or abuse of annual or sick leave before the MSPB, the following statutes should always be considered as a defense or affirmative defense:

1) Family and Medical Leave Act (FMLA). This law allows for up to 12 weeks (at once or sporadically) to treat your serious medical condition or assist in the care of a family member with a serious medical condition. When requested properly, an Agency denies FMLA at its own peril.

2) Americans with Disabilities Amendments Act (ADAA). If you have a medical condition requiring accommodation under the Rehabiliation Act, the ADA, or the ADAA, granting of intermittent, sporadic, or other leave is considering by the MSPB and the EEOC to be one of the most basic and easily granted accommodations.

3) OPM Regulations on Leave and Absence (Found at 5 C.F.R. Part 630, et seq). Many times Agencies try to apply their own interpretation of the Federal Leave requesting and approval requirements; one Agency tried to defend, before the MSPB, the denial of annual leave because the employee didn’t provide a doctor’s note. Another Agency tried to defend its denial of sick leave at the MSPB using the argument that the manager didn’t think that Major Depressive Disorder was really an illness.

4) Agency’s Collective Bargaining Agreement rules on leave and absence

5) Agency’s own internal policies and regulations.

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 using leave-related charges such as AWOL, Failure to Follow Leave Requesting Procedures, Enforced Leave, or Excessive Use of Approved Leave/Abuse of Leave, or based on an improper denial of leave under the FMLA or the denial of a reasonable accommodation under the ADA, contact an attorney familiar with MSPB appeals.

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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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