How Long Has This Unapproved Leave Been Goin’ On?
By Dan Gephart, December 11, 2024
Quick facts:
- When disciplining for AWOL, you have to prove not only the alleged facts but also the charge elements.
- AWOL of more than five days typically justifies termination.
- Older cases reveal that, depending on some factors, even fewer than five days could justify termination.
Over the Thanksgiving break, I found myself glued to HBO’s “Yacht Rock: A DOCKumentary.” For the uninitiated, yacht rock is a smooth and melodic, California-based blend of jazz, rhythm and blues, and soft rock that dominated radio airwaves between the mid-70s and mid-80s. Think “Ride Like the Wind” by Christopher Cross, “Black Friday” by Steely Dan, “What a Fool Believes” by the Doobie Brothers, or, basically, any other song with the voice of Michael McDonald.
The documentary was fun to watch, but then I started hearing these wispy songs wherever I went. I couldn’t escape them. This morning, I got in the car, turned on the radio, and was hit with the should-be-long-forgotten classic “How Long Has This Been Going On” by Ace. That yacht rock earworm has burrowed way deep into my temporal lobe.
It’s a fitting song, after all, since I’m writing today about Absence Without Leave, a disciplinary charge more affectionately known as AWOL. How many hours of AWOL justifies termination? In general, the answer is usually AWOL of greater than five days
Example 1: Young v. USPS, 14 MSPR 549 (MSPB 1983). A USPS mail handler was removed for fraudulent use of sick leave requests and AWOL. The agency charged the employee with 19 instances of AWOL, totaling 122 hours. In the initial decision, the AJ found only six instances, totaling 40.75 hours were supported by preponderant evidence. However, the AJ noted that all of the AWOL took place in a short period of time between June 4 and July 19 of the same year.
Although the mail handler’s performance had been fully satisfactory for 17 years, it was outweighed by his more recent record of unreliable attendance and its impact on the agency’s ability to accomplish its mission. The removal was upheld.
Could removal ever be deemed reasonable for AWOL of a smaller number?
Absolutely. Let’s try 17 AWOL hours, the number you’ll find in Banks v. DLA, 29 MSPR 436 (MSPB 1985). After a long stretch of unauthorized absence, an employee stated, through a union representative, that he was being treated for depression and work inhibition. The agency initially sought to remove the employee for AWOL but then made an alternative offer: We’ll put the proposed removal into abeyance and place you in a one-year probationary period. However, the employee refused to sign the paperwork.
Subsequently, the employee was AWOL for a combined 17 hours over a one-week period, and it was solely those absences that formed the basis of the agency’s removal action.
The MSPB ruled the removal was “reasonable under the circumstances of this case.” The Board pointed out the absences came shortly after the employee was warned about the previous absences.
How about eight hours or one day?
In Moxley v. VA, 36 MSPR 345 (MSPB 1988), a nursing assistant was placed on a sick leave restriction, requiring her to obtain medical certification to verify any use of sick leave. She requested sick leave for eight hours for later that month. The agency gave her five days to submit a medical certification of the need for sick leave. She didn’t, and the agency charged her AWOL when she failed to show up on the requested day.
The MSPB found the agency’s penalty of removal was reasonable due to several factors, including the fact she had previously been suspended twice for similar AWOL offenses. [A quick note here: FELTG considers suspension an irrational option with an AWOL charge. Better to consider a reprimand in lieu of suspension.]
To recap: AWOL is a leave status – not automatically a disciplinary action. But AWOL is also a disciplinary charge. In general, removal is appropriate for AWOL of longer than five days. However, it may be appropriate for shorter stretches, such as 17 or eight hours, although it’ll depend on other factors. Whatever the length of absence, however, be sure to consider the following elements when disciplining for AWOL:
- The employee was absent without authorization.
- If leave was requested, denial was reasonable. [email protected]
Related training:
- Feds Gone AWOL: What to do When Feds Don’t Show Up, February 6
- MSPB Law Week, April 7-11
