New FMLA Request Requirements for Federal Employees

Last week, the Merit Systems Protection Board (MSPB) issued a precedential decision holding that Family and Medical Leave Act (FMLA) leave requests must be made explicitly and in advance, overturning years of precedent to the contrary, and clarifying the evidentiary standards for “administratively acceptable” evidence for lengthy sick leave requests.

A Federal Bureau of Investigation (FBI) Special Agent was removed in August 2021 for being absent without leave (AWOL) from March 15 through May 28, 2021. Before this period, the agent was absent from August 17, 2020 through January 3, 2021 because of a job-related neck injury. He was instructed to return to full time work on January 4, 2021. On January 6, 2021, the first workday the agent was scheduled to return, he went to the emergency room and was diagnosed with lumbar radiculopathy. Based on this diagnosis, from January 6 to March 12, 2021, the agent was on leave without pay (LWOP) for 384 hours. This January 6 injury was not work related.

In March 2021, the agent’s supervisor learned he had been cleared to return to work on January 4, 2021 for his job-related neck injury. The supervisor sent the agent an email to return to work as of March 15, 2021. The agent responded to this email and stated he was instructed not to return to work until he was cleared, had a doctor’s appointment scheduled on April 2, 2021, was pursuing a workers’ compensation claim for his lumbar condition, and desired to use his sick leave until there was a resolution on the matter. His supervisor replied and explained he never received medical documentation related to this condition.

On March 22, 2021, the Agency emailed the agent and notified him that they had yet to receive medical documentation for his current injury absence. The agent was instructed to provide documentation that included details of his diagnosis, prognosis, and workplace limitations on FBI form FD-948, Certificate of Essential Duty Status (FD-948). On April 5, 2021, the agent submitted four FD-948s dated January 8,  February 5, March 5, and April 2, 2021. These forms indicated that the agent would remain out of work from January 8 to May 7, 2021.

On April 7, 2021, the agent received notification that the submitted FD-948s were “administratively unacceptable” because the doctor had not provided the agent’s ICD code, prognosis, diagnosis, restrictions, and approximate return to work date. The agent was instructed to resubmit the documents. On April 9, 2021, the agent resubmitted a hand-written doctor’s note containing the missing information. The agent also resubmitted his updated FD-948s by having his spouse enter the doctor’s note information onto the form. On April 23, 2021, the Agency again said the re-submitted FD-948s were “administratively unacceptable” because it identified a different diagnosis of the agent’s lumbar condition instead of his prior on-the-job-neck-injury. The agent was again instructed to resubmit his FD-948s.

On May 7, 2021, the agent emailed his supervisor and notified him that he would be out of work for an indefinite period. His supervisor replied and reminded him “all previous leave guidance remains for each work day away.” The agent was subsequently removed on August 24, 2021 allegedly due to being absent without official leave (AWOL) from March 15, 2021 to May 28, 2021. The administrative judge (AJ) affirmed the removal and the charge of being AWOL but did not sustain the AWOL specifications for March 15 to April 2, 2021. The AJ upheld the AWOL charged from April 5 to May 28, 2021. The agent filed a petition for review of this initial decision.

On MSPB review, the parties disagreed as to whether the Agency properly denied the agent’s request to use sick leave, even if it was not for the original injury. The MSPB explained “[a]n 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.” The MSPB affirmed the AJ’s decision that the agency’s denial of the agent’s sick leave was improper because there was no information lacking on the April 9, 2021 medical documentation that might render it administratively unacceptable. Further, the Board reasoned that the Agency cannot base “its AWOL charge solely on an employee’s failure to submit medical documentation on a particular form.” A sick leave request must be granted when the agent provides administratively acceptable evidence of incapacitation. The agent’s medical documentation was acceptable for this purpose.

But the bigger issue in this case revolved around whether the agent could retroactively invoke FMLA leave to cover days which he was otherwise AWOL. The agent argued this charge should not be sustained because he was entitled to FMLA leave for his medical issues. Here, the agent was indeed covered under Title II for FMLA and would have been “entitled to a total of 12 administrative workweeks of leave during any 12-month period” for a health condition where the agent cannot perform his position functions. 5 U.S.C. § 6382(a)(1)(D). In the past the MSPB held an employee does not have to specifically invoke FMLA when requesting leave if there is evidence supporting that the leave can fall under FMLA, and that it was the agency’s obligation to grant FMLA when the employee presented circumstances where it could be otherwise used. See Bowen v. Dep’t of the Navy, 112 M.S.P.R. 607,  ¶ 8 (2009), aff’d per curiam, 402 F. App’x 521 (Fed Cir. 2010). However, the FMLA statute provides that an employee “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 utilize FMLA leave. 5 U.S.C. § 6382(a)(1), (e). This responsibility of an employee applies unless both the employee and his personal representative are medically unable to notify the federal employer. 5 C.F.R. § 630.1203(b).

Therefore, the Board found an employee must invoke FMLA leave themselves in order to use it, and cannot retroactively designate leave as FMLA leave, even if the employee would have qualified if it was properly invoked, overruling previous MSPB precedent.

Read the full opinion: Bushkell v. DOJ