MSPB HIGHLIGHTS SICK LEAVE AND DISABILITY RIGHTS
The Board recently wrote that an agency cannot rest an AWOL charge solely on an employee’s failure to submit medical documentation on a particular form. If the employee has sufficient sick leave to cover the period in question, the agency must grant the request when the employee provides administratively acceptable evidence of incapacitation because of illness or injury and may not charge him with AWOL for the period, regardless of whether the employee has complied with applicable leave procedures. 5 CFR §630.401(a)(2) (mandating that an agency “grant sick leave” when an employee is medically incapacitated)… Regardless of its format, the appellant’s medical documentation was administratively acceptable, and the agency was required to allow him to use his accrued sick leave.
See Riley v. Department of the Army, 53 M.S.P.R. 683, 690 (1992) (finding that an appellant’s physician’s certificate constituted administratively acceptable evidence when it contained a description of her medical condition and the period that she was on bed rest and unable to work). Consequently, the Board agreed with the administrative judge who found that the agency improperly denied the appellant’s sick leave request because the agency could not identify any information that was lacking in the medical documentation the appellant submitted. “An AWOL charge will not be sustained if an employee presents administratively acceptable evidence showing that he was incapacitated for duty during the relevant time period, and he has sufficient sick leave to cover the period of absence.”
Although the Board found that a large portion of the AWOL charged the employee could not be sustained because of the above reasoning, it did uphold enough of the AWOL charged to sustain the employee’s removal.
But, it then ordered the case back to the Administrative Judge for a new hearing on whether the agency committed disability discrimination when it turned down the employee’s request for sick leave. It declared that the employee’s March 14, 2021 request for sick leave due to his medical condition constituted a reasonable accommodation request. Allowing an employee to use accrued or unpaid leave is a form of reasonable accommodation. Josefina L. v. Department of Veterans Affairs, EEOC Appeal No. 2021003613, 2023 WL 2660688, *3 (Mar. 15, 2023); Equal Employment Opportunity Commission, Employer-Provided Leave and the Americans with Disabilities Act, Granting Leave as a Reasonable Accommodation (May 9, 2016), https://www.eeoc.gov/laws/guidance/employerprovided-leave-and-americans-disabilities-act. 5 As a result, the administrative judge must reevaluate the appellant’s affirmative defense of disability discrimination based on the denial of the appellant’s request to use sick leave, including determining in the first instance whether the appellant was a qualified individual with a disability. If there was discrimination, this employee may get reinstated. For more details check out 2026 MSPB 2, John Brandon Bushkell, Appellant, v. Department of Justice, Agency (March 17, 2026)
