RETROACTIVE LEAVE VERSUS USE OR USE RULES

What happens when an employee is granted a big chunk of retroactive annual leave pursuant to a grievance, EEO complaint, or other litigation, but it is too late in the leave year for her to use it all.  Does she lose what she can’t use or does the normally powerful use or lose concept bend to avoid her losing any leave? While the resolution might differ depending on the reason the leave was restored, when it is due to illegal discrimination EEOC has made it clear that she is not to lose any of the retroactive leave she was awarded, even if only through a settlement agreement. The commission recently wrote,

Title VII provides authority for agencies to effectuate the terms in settlement agreements that “appear to be at odds with normal personnel procedure or practice contained in regulations implementing Title 5 of the United States Code.” See MD 110, Chapter 12, Section VII. Here, the plain meaning in the settlement agreement suggests the parties agreed that the Petitioner would receive 158 hours of restored leave. Therefore, the Agency is obligated to restore the annual leave according to 5 C.F.R. § 630.306 which permits the Agency to provide additional time for Petitioner to use any restored annual leave exceeding the maximum annual leave accumulation allowed. Marcellus M., v. Pete Hegseth, Secretary, Dep’t. of War, (NGB) EEOC No. 2025001789 (2026)

Whether the agency can order the employee to stay home until her leave balance gets within allowable limits is another question. If you are representing an employee facing this leave dilemma you want to add some details to any settlement agreement or EEO decision spelling out how soon the leave must be used.