We all know that an Agency can try to remove you for being Absent Without Leave (AWOL). What if an Agency tries to remove you for taking too much approved annual leave or approved sick leave? How about if an Agency tries to remove you for taking too much Leave Without Pay? Will the Merit Systems Protection Board (MSPB) uphold that decision?

Every case is unique, so the answers to those questions are things you should discuss with your/an attorney. However, generally, an Agency may not take disciplinary action against an employee who is on approved leave. There are two exceptions to this general rule, and they are referred to as the “Cook” exceptions. Cook v. Dept. of the Army, 18 MSPR 1610 (1984).

The first “Cook” exception is that an Agency can remove you for approved leave if you failed to properly follow leave requesting procedures. In other words, even though your leave is approved, if you failed – after being put on notice – to follow the Agency’s leave requesting procedures, the MSPB could sustain adverse action against for failing to properly follow leave requesting procedures.

The second “Cook” exception is that an Agency can remove you for excessive unscheduled leave. In this scenario, an Agency would have to show:

1) That the employee’s absence was due to compelling reasons beyond his/her control such that approval or denial of the leave is immaterial to the employee’s presence on the job;

2) That the absence continued beyond a reasonable time, and the Agency warned the employee that adverse action could be taken if the employee continued to be unavailable.

3) That the employee’s position needed to be filled by an employee available for duty.

A recent MSPB decision in Edwards v. Dept. of Transportation, 109 MSPR 579 (August 6, 2008) clarified that the “Cook” exception only applies for unscheduled leave without pay – not approved annual leave, sick leave, etc.

Thus, there are several important factors in any MSPB case where the charge against the employee is removal for excessive leave – if the answer to any one of these questions is “yes”, then the Agency may have a more difficult time sustaining a charge of “excessive absence”:

A) Was the employee on approved annual or sick leave?

B) Did the employee have sufficient sick leave balance to cover the absence?

C) If the employee was on LWOP, was the LWOP scheduled, as that term is defined by the “Cook” cases.

D) Did the Agency fail to give clear notice of adverse consequences if the employee failed to report to work?

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 you have questions about the MSPB, unscheduled or approved leave, removals for excessive use of leave, or any other question about a leave based disciplinary or adverse action taken by your Agency, please contact an MSPB attorney at the Law Offices of Eric L. Pines, PLLC, to schedule a telephone consultation.