Thanks for the question. And the answer is … it depends.

A foundational principle regarding LWOP is that granting or denying LWOP is within the agency’s discretion. See Sambrano v. Department of Defense, 116 M.S.P.R. 449, ¶ 4 (2011). In cases involving employee medical issues, the MSPB will examine the record as a whole to determine whether the agency’s denial of LWOP was reasonable under the circumstances. Id. When an employee who is incapacitated for duty has exhausted all of her leave, an agency may deny LWOP when there is no foreseeable end to the employee’s absence and the employee’s absence is a burden to the agency. Id.

Allow us to elaborate by way of a recently issued NP case from the MSPB, Evans v. DOL, CH-0752-15-0179-I-1 (May 3, 2023)(NP). Evans was removed for AWOL after the agency denied her request for continued LWOP related to an illness. On appeal, the AJ affirmed the agency’s AWOL charge and concluded that the agency’s denial of LWOP was reasonable because there was no foreseeable end to her absence, and the absence was a burden to the agency. The Board agreed.

Agency policy on LWOP often arises in these cases, and Evans was no exception: “The agency’s policy specifically indicates that the granting of LWOP is discretionary…While it does allow officials to grant LWOP pending final action by the Office of Personnel Management on a disability retirement claim, at their discretion, the policy does not specifically cover the appellant’s situation, when she was AWOL but apparently still deciding whether to apply for disability retirement.”

The intersection of leave and medical issues is one of the more complex areas in Federal employment law, and mistakes can cost the agency dearly. If you work in this arena, FELTG has two upcoming training opportunities you’ll want to take advantage of:

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

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