While in general a supervisor cannot discipline an employee for approved leave, there is an exception for excessive absence cases, when an employee has been on approved leave for a length of time but the leave is now causing a hardship on the agency. The foundational case is Cook v. Army, 18 MSPR 610 (1984), as it lays out the elements required for an excessive absence removal:
1.The employee was absent for reasons beyond their control;
2.The absences continued beyond a reasonable time;
3.The supervisor warned the employee that he would be removed if he did not report to work; and
4.The agency showed that the position needed to be filled on a regular, full-time basis.
Take a look also at Curtis v. USPS, 2009 MSPB 134 and Combs v. SSA, 91 MSPR 148 (2002) in which excessive absence removals were upheld. For a couple of cases that went the other way for agencies, try Miles v. DVA, CH-0752-14-0374-I-2 (May 17, 2016) and New v. DVA, 99 MSPR 404 (2005). We cover this topic in detail in our Absence, Leave Abuse & Medical Issues Week, so join us for that if you need more!
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