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!
The materials presented here and on this website are for informational purposes only and are not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship.  Should you need legal advice, you should contact an attorney. 

Pin It on Pinterest

Share This