By Deborah J. Hopkins, May 13, 2024

We haven’t had many precedential MSPB cases this year, but the eighth one was BIG, involving a new requirement for removals under a charge of excessive absence. Excessive absence removals can be a little weedy, but if you ever handle these kinds of cases for your agency, please take five minutes to read on, or save this article and come back when you have time.

A general principle is the agency cannot take an adverse action against an employee for absences it has approved. It wouldn’t make sense (or be fair) for an employee to be disciplined for a situation where the supervisor had granted discretionary leave, or the employee had an entitlement to the leave (such as sick leave).

However, sometimes approved leave can extend so long that it causes an issue for the agency – most often in situations of extended Leave without Pay (LWOP), and sometimes including copious amounts of sick leave and/or annual leave. In rare circumstances, an agency may remove an employee for excessive absences, even if the employee has been on approved leave, but to justify doing so, the agency must prove the following elements:

  1. The employee was absent for compelling reasons beyond his control;
  2. The absences continued beyond a reasonable time, and the agency warned the employee that an adverse action would be taken unless the employee became available for duty on a regular basis; and
  3. The position needed to be filled by an employee available for duty on a regular basis.

Cook v. Army, 18 M.S.P.R. 610 (1984).

In the precedential case that brings us together today, the Board added a significant amendment to how an agency determines what absences can be tabulated to meet the “beyond a reasonable time” standard:

We hold that, to prove a charge of excessive approved absences, an agency cannot rely on absences that predate the warning… It would be a stretch to consider a notification of potential discipline as a “warning” to the extent that the notice was given after the underlying conduct already occurred.

Williams v. Commerce, 2024 MSPB 8, ¶6-7 (Apr. 23, 2024).

Up until Williams, agencies would typically send the warning letter after hundreds, if not thousands, of hours of absences and then remove the employee fairly shortly after the warning was issued if the employee did not return to work or still had significant absences after he returned to work.

Does Williams mean the agency cannot rely on any of the absences leading up to the warning to return? Not exactly. The Board said, “Prewarning absences may still be relevant for other purposes, such as evaluating medical evidence or determining whether the absences have a foreseeable end. However, they cannot be used to support the charge itself. Rather, a charge of excessive absences will only be sustained when the post-warning absences were themselves excessive.” Id. at ¶8.

In Williams, the absences still amounted to 1,109.25 hours in the one-year period after the agency warned the appellant to come back to work, so the Board held the agency proved its case even after discounting the prewarning absences.

This case raises the question, of course, about what the Board will consider to be “excessive” post-warning. Does existing Board case law still stand, given that until now the pre-warning absences could be counted, or will a new line of cases give us updated parameters?

Fortunately, the Board has indicated at least some past precedent is still good law. In Williams, it cited Gartner v. Army, 104 M.S.P.R. 463, ¶ 10-11 (2007), a case where the agency proved an excessive absence charge when an employee was absent 333.5 hours during a 6-month period (about a third of the time). So, we may not be looking at additional multiple years beyond the warning letter, but we can guess it likely requires several absences over the course of a few months, at a minimum.

We are going to hash this out, along with any other new cases on excessive absence, during next month’s Absence, Leave Abuse & Medical Issues Week, June 3-7. Hope you can make the time to join us! [email protected]

P.S. You can read the full Williams opinion here.

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