Depressing response to sick leave

If you take some sick leave make sure you notify your boss first. Otherwise plan on spending a lot of time fighting back if you want to hold onto your job. That's one practical lesson learned from a recent case brought to the Merit Systems Protection Board (MSPB) by a postal worker who racked up 246 hours of unscheduled absence.

The worker who I will call John Doe argued that the Family and Medical Leave Act (FMLA) entitled him to use sick leave without prior approval when depression prevented him from working. The U.S. Postal Service fired him saying it already had put him on notice that his unscheduled absences were unacceptable.

An administrative law judge backed up USPS saying the FMLA was irrelevant because it does not apply to unscheduled leave. So Doe went to the MSPB believing he had a legitimate reason to excuse himself under the provisions of the MSPB.

Before we go any further let's review the basic elements of the FMLA. Under the law employees have the right to take unpaid leave for up to 12 work weeks during any 12-month period for a number of reasons including personal health problems.

Doe's lawyer argued to the MSPB that because his client was entitled to up to 12 weeks unpaid leave due to illness USPS had violated Doe's "rights" under the FMLA. The lawyer also argued that the agency had not posted a notice on its premises detailing employee rights and responsibilities under the act.

Doe had precedents on his side. In an earlier case the MPSP ruled that if an employee has an unscheduled absence that meets the requirements of the FMLA's leave provisions an agency's charge of unscheduled absence must be scrutinized in light of the employee's rights and requirements under the act. In other words the administrative law judge was way off base when he said the FMLA was irrelevant. In fact as the MSPB specifically said in its decision the "FMLA may be a relevant and material defense to a charge that requires proof of failure to follow leave procedures."

The MSPB also faulted USPS for failure to post a notice concerning the rights and obligations of employees under the FMLA. Because of that failure it ruled the agency interfered with Doe's rights to request leave under FMLA. Although not detailed in the MSPB decision this presumably involves notifying your employer of a qualifying situation and then trying to work out an arrangement that is consistent with both parties' needs.

Actually the whole situation seems ludicrous to me. If someone is suffering from depression they can't foresee when they are going to become so depressed that they won't be able to work.

The MSPB sided with Doe and against USPS remanding the appeal back to the administrative law judge for consideration of the FMLA claim. I would have preferred that the MSPB rule in favor of Doe - period. However this is not a perfect world.

I certainly hope the administrative law judge upon reviewing the case gets the message that the MSPB has clearly communicated to him.Bureaucratus is a retired federal employee who is a regular contributor to Federal Computer Week and the author of Bureaucratus Moneyline a personal finance newsletter available by subscription on FCW's Web page at


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