FMLA QUIZ: WHO IS RIGHT AND WHO IS NOT?
Here are the facts of a 2015 MSPB decision in an adverse action suspension case. See if you remember the right answer. The employee left the office the morning of September 5 due to debilitating stomach cramps, making it to his car with the help of some of his colleagues and then driving far enough to get off post, where he parked until his cramping subsided. He then drove the short distance remaining to his home, where he went straight into a dark room he uses when he has a strong migraine and collapsed. Two days later he notified his supervisor that he left the office unannounced due to an urgent health need on September 5 and requested intermittent FMLA leave on an emergency basis to cover the absence. He also asked that the absence be compensated via a request for advance credit hours. The supervisor refused to approve the request for advance credit hours and charged him with AWOL because he failed to request and receive leave approval before departing the office on September 5, as required by the agency’s leave instruction The two-day delay was unacceptable. The agency maintained that, because the appellant was able to drive himself home and to call his daughter, he was therefore able to give notice before he left the office that morning and, because he did not do so, he was AWOL. It then suspended him for 30 days. Do you believe the suspension should be upheld or overturned?
When MSPB got the case it wrote that when an employee’s need for FMLA leave is unforeseeable, and leave cannot be requested in advance, the pertinent regulation requires the employee to “provide notice within a reasonable period of time appropriate to the circumstances involved.” See 5 C.F.R. § 630.1207(d). Although an agency may apply its own procedures to leave requests under the FMLA it may not apply a more restrictive policy than that provided under the FMLA and may not deny the employee leave for failure to follow agency procedures. 5 U.S.C. § 6383; Burge v. Department of the Air Force, 82 M.S.P.R. 75, 85, (1999); 5 C.F.R. § 1206(e). Under the facts of this case the Board held that the agency applied a more restrictive notice policy than the “reasonable period of time appropriate to the circumstances involved” standard set forth in 5 C.F.R. § 630.1207(d). It did not help the agency’s argument that a two-day delay was unreasonably long when the employee showed the Board that the agency had applied a more restrictive deadline than it had in a similar episode involving the employee just a few weeks earlier. The supervisor testified that in August the appellant had left the office early under similar circumstances after calling his daughter to bring him home, and, although he acknowledged that the employee “didn’t notify [him] for a couple days later,” because the employee “notified [him] when he could” the supervisor testified “[t]hat was fine.”
In addition, the Board ruled that denying the employee’s leave request because he sought to use credit hours that had not yet been credited to his account is an inappropriate basis to deny the FMLA request. The agency’s leave instruction specifically provided that an employee on FMLA leave may use LWOP as a matter of right. Thus, the employee, at his option, could use LWOP in lieu of the credit hours he requested for the September 5 absence, making the type of leave requested irrelevant to the analysis. See Kone v. Dept. of Navy, MSPB, PH-0752-13-0217-I-3 PH-0752-13-0413-I-2, February 27, 2015.
We wish we could provide practitioners some advice on how to make the decision as to what is reasonable more predictable than regulation do, but some situations can’t be managed by strictly objective rules. The best that we can think of would be settling on a list of examples of what is reasonable and what is not. Otherwise, the employee risks losing weeks or pay if not even his job based on an AWOL charge and the agency risks a sizeable chunk of back pay as well as attorney fees and interest. If anyone out there has a better idea, toss it our way via a comment and we will pass it on.