MSPB SUDDENLY OUTLAWS MOST RETROACTIVE REQUESTS FOR FMLA

If you think you can ask for FMLA leave retroactively, think again.  It is not always possible. The Board has held in the past that an employee is not required to specifically invoke FMLA when requesting leave, so long as he presents the agency with sufficient evidence to trigger consideration of his absence under FMLA.  According to the Board, that holding is now incorrect. Here is why.

It has noted that the statute provides that an employee typically “shall provide the employing agency with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention” to take FMLA leave. 5 U.S.C. 10 § 6382(a)(1), (e) Further, under regulations issued by the Office of Personnel Management implementing Title II of FMLA, an employee is responsible for invoking his entitlement to FMLA leave unless he and his personal representative are medically unable to do so. 5 C.F.R. § 630.1203(b). An employee may not retroactively invoke his entitlement to FMLA-protected leave. Id. The U.S. Court of Appeals for the Federal Circuit has cited 5 C.F.R. § 630.1203(b) for the propositions that a Federal employee must invoke his entitlement to FMLA and that an employee may not do so retroactively, unless the employee was medically incapable of invoking his entitlement during the entire period of his absence, in which case the employee must invoke within 2 workdays of his return. Williams v. Department of the Army, 300 F. App’x 920, 923 (Fed. Cir. 2008); 4 see also Crutchfield v. Department of the Navy, 73 M.S.P.R. 444, 447 n.3 (1997) (recognizing that 5 C.F.R. § 630.1203(b) provides that an employee must invoke his entitlement to FMLA leave). Therefore, the Board now finds that an employee covered by Title II of FMLA must expressly invoke FMLA when requesting leave and may not retroactively designate leave as FMLA protected unless the employee and his personal representative are medically unable to do so. We overrule prior Board cases to the extent that they state otherwise. For more details, check out  2026 MSPB 2, John Brandon Bushkell, Appellant, v. Department of Justice, Agency (March 17, 2026)

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