The Board Offers Guidance, But Not Much Help, on the New Excessive Absence Standard
By Deborah J. Hopkins, November 5, 2024
Quick facts:
- In excessive absence cases, the MSPB now only considers absences beyond the date the agency warns the employee to return to work.
- The Board did not instruct agencies how much absence post-warning would meet the “excessive” standard.
- In a new MSPB case, the Board held that 200 hours of absence post-warning did not satisfy the excessive absence Cook criteria.
Remember earlier this year when the MSPB changed the requirements for excessive absence removals in Williams v. Commerce, 2024 MSPB 8 (Apr. 23, 2024)? If not, then you’ll want to update yourself here and then come back to this article for the latest development on excessive absence removals.
Generally an agency is not allowed to discipline an employee for being on approved leave, but an exception exists if the agency can show:
- The employee was absent for compelling reasons beyond his control;
- 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
- 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).
Earlier this year the Board held in Williams that under element 2, an agency may not consider any absences the employee accrued BEFORE the agency warned the employee he would be removed if he did not return to work by a specific date; the agency may only count absences that occur AFTER the warning.
But Williams involved over a thousand hours of absence post-warning, so our biggest unanswered question after reading the case multiple times:
- Exactly how many hours of absences will the Board determine is “excessive” post-warning?
Over a thousand hours, as in Williams, sure. But what about 800? 500? 200? Williams didn’t give us any indication where the lower end of the threshold would be, except when it alluded to Gartner v. Army, 104 M.S.P.R. 463 (2007), where the agency successfully proved an excessive absence charge when an employee was absent 333.5 hours during a 6-month period.
Which brings us to today. An employee was removed for excessive absence after she was absent for 1,400 hours over a one-year period. Butler v. FDIC, DA-0752-20-0060-I-1 (Oct. 22, 2024)(NP). In Butler, where the events occurred in 2017 and 2018, the Board retroactively applied Williams and found the agency failed to prove its excessive absence charge because only 25 days (or 200 hours) of straight absence occurred after the agency warned the appellant she was required to return to work. According to the Board:
Such a relatively short period of absence does not prove an excessive absence charge. Stated another way, 25 days of absence is not sufficient to establish that the appellant’s absence continued beyond a reasonable time, and therefore, the agency has not proven its charge of excessive absence.
Williams at 4-5.
This is the time in the article I’d like to say, “But wait, there’s more!” Except there isn’t more. The Board left it at that and didn’t indicate ANYTHING about how many hours it would take for the agency to meet the “excessive” standard; it reversed the removal and ordered the agency to reinstate the employee with back pay.
Because the line here is not clear, and because we have mountains of case law that shows an agency can justify an AWOL removal for far fewer than 200 hours, at FELTG we are strongly considering moving away from the excessive absence approach altogether, and instead ordering the employee to return on X date, informing them they will be carried AWOL if they do not return, and effecting the AWOL removal after two weeks, if the employee does not report back.
If you have thoughts on this, or if your agency is taking a different approach, please feel free to share. [email protected]
Related training:
· Feds Gone AWOL: What to Do When Employees Don’t Show Up, Feb. 6