I.

INTRODUCTION

Since the enactment of the Family and Medical Leave Act (FMLA) in 1993, 5 USC § 6381 – 6387, employees of the federal government have obtained substantial new rights in the area of leave administration. Many employees may not be fully aware of these rights which can have an extremely positive impact on the quality of the lives of those we represent. In a 1997 Report to Congress, OPM, after a survey of 56 federal agencies, summarized the value of family friendly leave policies on employees, managers and mission accomplishment as follows:

Employees

• An opportunity to build a reserve of annual leave to use for family vacations instead of family care.
• Increased financial benefits by avoiding or reducing the use of leave without pay and eliminating the need to hire outside help to care for a family member.
• New alternatives for managing short-term care and making long-term care arrangements.
  • Sharing of family care responsibilities by spouses.
  • More honesty in sick leave usage. (Employees no longer need to feign their own illness when their presence is required to care for a family member.)
  • More control in the struggle to balance work and family responsibilities.
• Less stress and anxiety in times of emotional need and concern.
• Greater ability for single parents and parents of young children to deal with routine and unexpected medical needs.

Managers

• Enhanced employee morale.
• More incentive for employees to save their sick leave.
• A new recruitment and retention tool.
• More productive employees.
• Improved communication between supervisors and employees.

Agency Mission Accomplishment

• Greater workplace productivity and efficiency.
• Acceptance by coworkers of increased workloads to assist employees who are absent from work because of family illnesses or bereavement.
• Perception of Federal Government as a flexible and caring employer.
• A Cooperative attitude between management and employees.

Some of the most common, yet difficult, issues stewards and officers face in the workplace are employees with leave and attendance problems. These leave issues at their worst can result in charges of AWOL, discipline or removal and invariably cause major problems with job stress, tension and lack of trust with a management. Many stewards, even seasoned veterans may have a difficult time separating fact from fiction when it comes to employee leave issues. Are you becoming cynical about the number of sick or dying relatives an employee could possibly have? Have you committed to memory the hundreds of psychiatric conditions contained in The Diagnostic and Statistical Manual of Mental Disorders, Volume 4? Are you somewhat confused by the variety of legal, regulatory, contractual provisions that affect federal employee leave entitlement? Are the managers you deal with arrogant, uncaring or indifferent when it comes to leave issues and demand that leave requests be supported by such detailed documentation that you need to be a second year medical resident to even understand it? Many employees with leave problems have complex medical, psychological or other personal issues which only professional medical assistance or other outside support can begin to fix. However, we are the professionals in the workplace representation arena and having a good working knowledge of the recent developments in family friendly leave policies in the federal workplace can be a valuable tool to assist those we represent in a very meaningful way.

V.

THE FAMILY AND MEDICAL LEAVE ACT

Title II of the Family and Medical Leave Act (FMLA) of 1993 found at 5 USC § 6381 –6387, covers federal civil service employees who have completed at least twelve (12) months of service the regulations implementing the FMLA are found at 5 CFR 630.1201-630.1211. Each agency is required to inform its employees of their entitlements and responsibilities under the FMLA 5 CFR 630. 1203 (g)

The FMLA provides covered federal employees with entitlement to twelve (12) workweeks of unpaid leave during any twelve- (12) month period for the following purposes:

• the birth of a son or daughter of the employee and the care of such son or daughter;
• the placement of a son or daughter with the employee for adoption or foster care;
• the care of spouse, son, daughter, or parent of the employee who has a serious health condition; or
• serious health condition of the employee that makes the employee unable to perform the essential function of his or her positions.

Unlike FMLA provisions governing public and private sector workers, federal employee covered under Title II of the statute may not be required to substitute paid leave for any of the twelve (12) weeks of unpaid leave authorized by the this law. 5 CFR § 630.1205. (d)

However, a federal employee may choose to substitute accrued annual or sick leave, including advanced annual or sick leave, for any or all of the twelve (12) weeks of FMLA leave. The final regulations no longer permit compensatory time off or credit hours to be substituted for leave without pay under the FMLA. However, an employee may use earned compensatory time off and credit hours in addition to the period of FMLA leave. The regulations require that the employee notify the agency of his or her intent to substitute paid leave prior to the date such paid leave commences 5 CFR § 630 1205 (e). Retroactive substitution of paid leave for FMLA leave without pay is not allowed.

FMLA leave is an addition to other paid time off available to employees.

Under certain conditions, FMLA leave may be taken intermittently or the employee may work under a work schedule that is reduced by the number of hours of leave taken as FMLA leave. 5 CFR § 630.1204

Example:

• Carol is expecting a baby in four (4) months. Carol has 260 hours of sick leave and 200 hours of annual leave. She wants to spend as much time as possible with her new baby. Carol’s doctor anticipates that she will need six (6) weeks to recuperate after the baby’s birth. Carol has requested six (6) weeks (240 hours) of sick leave. She has also requested four (4) weeks of annual leave and twelve (12) weeks of leave without pay (LWOP). Her supervisor approves the sick and annual leave and informs her of her entitlement to unpaid leave under the FMLA. Carol decides to invoke her FMLA entitlement and use four (4) weeks of leave without pay under the FMLA following her approved four (4) weeks of annual leave. In addition, she and her supervisor work out a leave schedule that permits Carol to use FMLA leave without pay on an intermittent basis two (2) days a week for three (3) months following her return to work.

Upon return to work from FMLA leave, an employee must be returned to the same position or to an "equivalent position with equivalent benefits, pay, status and other terms and condition of employment". 5 CFR § 630.1208

An employee who takes FMLA leave is entitled to maintain health insurance coverage. An employee may pay the employee share of the premiums on the current basis or pay upon return to work. 5 CFR § 630.1209.

Advanced _ Notification
& Medical Certification for FMLA Leave

The employee must provide notice of his or her intent to take FMLA leave not less than 30 days before leave is to begin when the need for leave is foreseeable based on expected birth, placement for adoption or foster care or planned medical treatment. 5 CFR § 630.1206 (a).

If the need for leave is not foreseeable e.g. a medical emergency or the unexpected availability of a child for adoption or foster care and the employee cannot provide the 30 days notice, the employee shall provide notice within a reasonable period of time appropriate to the circumstances involved. 5 CFR § 630.1206 (b). Notice of leave may be given by a family member or personal representative "If the need for leave is not foreseeable and the employee is unable, due to circumstances beyond his or her control, to provide notice of his or her need for leave, the leave may not be delayed or denied". 5 CFR § 630.1206 (c). If the need for leave is foreseeable and the 30 days notice is not provided with no reasonable excuse for the delay, the agency may delay the taking of leave under the FMLA until 30 days after the notice is given. The agency may waive this 30-day notice requirement and instead apply its "usual and customary" policies for providing notification of leave. The agency’s policies or procedures may not be more stringent than these regulatory requirements. 5 CFR 630.1206 (e). The agency must comply with any collective bargaining agreement that provides medical leave entitlements to employees. 5 CFR 630.1210 (a). This is true, particularly with respect to advanced notification and medical certification. The regulations clearly state that the FMLA statutory or regulating entitlements for employees "may not be diminished by my collective bargaining agreement or any employment benefit or plan". 5 CFR 630.1210 (b).

When an employee requests FMLA leave in order to care for a family member or for his or her own serious health condition, the agency may grant FMLA leave based on the employee’s explanation of the situation. The agency also can require written medical certification from the health care provider. 5 CFR 630.1207

The regulations clearly delineate the information a medical certification must contain.

This includes: the date the health condition began; the probable duration of the condition; and "the appropriate medical facts within the knowledge of the health care provider regarding the serious health condition, including a general statement as to the incapacitation, examination, or treatment that may be required". 5 CFR 630.1207 (b)

If the condition is chronic or continuing and the provider cannot predict a probable duration, the provider may so explain, state whether the employee or family member is currently incapacitated, and describe how the condition will likely affect the employee’s ability to work in the future (or will incapacitate the family member in the future).

If the employee is the one who is ill, the certification also must state that the employee is unable to perform one or more of the essential function of his or her position, or that the employee requires medical treatment for the health condition.

The agency may choose to provide written information on the essential function of the employee’s position, but if it does not, the health care provider should base this part of the certification on a discussion with the employee.

If the employee needs FMLA leave to care for a family member, the medical certification also must include a statement from the health care provider that the family member "requires psychological comfort and/or physical care; needs assistance for basic medical, hygienic, nutritional, safety, or transportation needs or in making arrangements to meet such needs; and would benefit from the employee’s care of presence". 5 CFR 630.1207 (b) (4)

In such a situation, the employee must submit a statement of the care he or she will provide and the estimated amount of time this will require.

If the employee requests FMLA leave on an intermittent basis or asks to work less than a full time schedule using some FMLA leave hours daily, the medical certification must specify the pertinent details. See 5 CFR § 630.1207 (b) (6).

The regulatory language contains privacy protection for employees. The only personal or confidential information the agency can demand from the employee are the items explicitly listed in the regulations, and this information can only involve the serious health condition upon which the employee is basing the current FMLA leave request.

The agency, therefore, cannot require the employee to provide a diagnosis. In many cases, stating a diagnosis may be the simplest way for a health care provider to furnish "the appropriate medical fact" about the employee’s or family member’s condition.

However, if the employee believes it would be harmful or embarrassing to have the specific diagnosis revealed, he or she may instruct the health care provider to write the medical certification in a manner that gives the essential medical information without a specific embarrassing diagnosis.

Other protections incorporated in the law lay out the options available to an agency that is dissatisfied with the medical certification submitted by an employee.

The agency may not ask for new information from the health care provider. And no agency employee who is not himself or herself a health care provider may contact the employee’s health care provider. However, with the employee’s permission, a health care provider of the agency may contact the employee’s health care provider in order to clarify the medical certification.

If the agency doubts the validity of the medical certification provided by the employee, the agency may require a second opinion.

In such a case, the agency will select or approve another health care provider – and it will pay the costs, with the proviso that the second health care provider cannot be employed or under the administrative oversight of the agency on a regular basis, unless the agency is located in a remote area.

If the second opinion differs from the employee’s original medical certification, the agency may require the employee to seek a third opinion.

The third opinion will be given by a health care provider jointly selected by the employee and agency. It is financed by the agency and binding.

The FMLA regulations spell out abroad definition of qualifying serious health condition, is broken down into six categories of "illness, injury, impairment, or physical or mental condition." (5 CFR § 630.1202).

The first category involves all health conditions that require overnight stay in a hospital, hospice or residential medical care facility.

The second category includes any health condition that causes the employee or family member to be incapacitated for more than three consecutive calendar days and for which either (a) the ill person is treated two or more times by a health care provider or by a provider of health care services on referral by a health care provider or (b) the ill person is treated at least once by a health care provider who prescribes (and supervises) a regimen of continuing treatment.

Because prescription medicine and therapy requiring special equipment both count as such regimens, in practical terms an employee has an FMLA-qualifying health condition if, for example, he or she becomes incapacitated for four (4) calendar days with a respiratory condition, visits the family doctor, receives a prescription for a common antibiotic, and is instructed by the doctor to "call me if you don’t get better."

The third category of serious health condition covers any period of incapacity – even periods less than three (3) days – due to pregnancy or prenatal care, even if the woman does not receive active treatment from a health care provider while she is incapacitated.

The fourth category covers chronic serious health conditions and allows FMLA leave for episodic or continuing periods of incapacity or for treatment. In the case of a chronic condition, FMLA leave is authorized even when the affected individual does not receive active treatment from a health care provider.

The fifth category covers conditions that are permanent or long-term and for which treatment may not be effective, such as Alzheimer’s, severe stroke, or the terminal stages of a disease.

The sixth category covers any period of absence to receive multiple treatments for restorative surgery after an accident or injury or for a condition that would result in incapacity if left untreated.

The regulations also give a list of health conditions that are not serious.

These include "routine physical, eye, or dental examination; a regimen of continuing treatment that includes the taking of over-the-counter medication, bed-rest, exercise and other similar activities that can be initiated without a visit to the health care provider," and, unless complications arise, "the common cold, the flu, earaches, upset stomach, minor ulcers, headaches (other than migraines), routine dental or orthodontia problems, and periodontal disease." See 5 CFR § 630.1202

These health conditions not deemed "serious" for FMLA entitlement purposes are often covered under normal sick leave regulations or the regulations implementing the Federal Employee Family Friendly Leave Act (FEFFLA), Public Law 103-388

III.

THE FEDERAL EMPLOYEES FAMILY FRIENDLY LEAVE ACT (FEFFLA)

In 1994, Congress passed this statute, Pub.L. 103-388, to establish a three (3) year trial period to expand the purpose for which sick leave may be used to care for a family member and bereavement. While the FEFFLA expired on December 31, 1997, OPM issued final regulations under its permanent regulatory authority, which are in full force and continue the provisions of the FEFFLA as follows:

Federal employees may use up to a total of 104 hours (13 workdays) of sick leave each leave (i.e. calendar) year to:

• Provide care for a family member who is incapacitated as a result of physical or mental illness, injury, pregnancy, or childbirth;
• Provide care for a family member as a result of medical, dental, or optical examination or treatment; or
• Make arrangements necessitated by the death of a family member or attend the funeral of a family member. 5 CFR 630.401 (a)

A covered full-time employee may use 40 hours (5 workdays) of sick leave each leave year for these purposes. 5 CFR 630.401 (b). An additional 64 hours (8 workdays) of sick leave may be used each year if the employee maintains a balance of at least 80 hours of sick leave in his or her account. Part-time employees and employees with uncommon tours of duty are also covered, and the amount of sick leave permitted for family care and bereavement is pro-rated in proportion to the average number of hours of work in the employee’s scheduled tour of duty each week. 5 CFR 630.401 (c).

"Family member" for purposes of the FEFFLA is defined more broadly than the definition used under the FMLA. The term "family member" is defined a 5 CFR 630.201 (b) as:

• Spouse, and parents thereof;
• Children, including adopted children, and spouses thereof;
• Parents;
• Brothers and sisters, and spouses thereof; and
• Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

In addition, 5 CFR 630.401 (a) (b) provides sick leave entitlement for purposes related to the adoption of a child including appointments with adoption agencies, social workers and attorneys, court proceedings, required travel and any other activities necessary to allow the adoption to proceed. There is no 13 workday cap on entitlement to sick leave for adoption.

In addition, Section 629 (a) of Public Law 103-329, effective September 30, 1999 entitles federal employees to use seven (7) days of paid leave each calendar year (in addition to annual leave or sick leave) to serve as a bone marrow or organ donor.

1 OTHER LEAVE POLICIES

A0 May 24, 1999 Memorandum from President Clinton to Heads of Departments and Agencies.

In this memorandum, the President directed OPM to propose regulations to allow federal employees to use up to 12 weeks of accrued sick leave each year to care for a spouse, son, daughter or parent with a "serious health condition" defined by the FMLA including the same FMLA notification and certification requirements. OPM estimates that it will be able to implement these regulations by the end of calendar year 1999.

This memorandum directs agencies to ensure that federal employees be granted up to 24 hours of LWOP each year for the following activities:

1. School and Early Childhood Activities (such as parent teacher conferences, interviewing for a new school or child care facility or participating in volunteer activities supporting the child’s education enhancement.

2. Routine Family Medical Purposes. The 24 hours of LWOP is in addition to the sick leave authorized by the FEFFLA regulation.

3. Elderly Relatives Health or Care Needs. In addition to FMLA entitlements to care for an elderly relative with a serious health condition or the FEFFLA entitlement to accompany an elderly relative to medical, dental or other professional appointments, federal employees can use 24 hours of LWOP each year for such activities as making arrangements for housing, meals, phones, banking services and other similar activities.

1. The FMLA covers this situation

2. The FEFFLA covers this situation

3. I need more facts, but you might be covered by either the FMLA or the FEFFLA

4. President Clinton’s Memorandum to Agency Heads dated April 11, 1997 entitled Expanded Family and Medical Leave Policies is exactly on point

5. There must be something that covers this

6. Let’s call the Chief Steward

7. You’re out of luck. Lets see if we can catch the boss in a good mood

8. Get out of here but call me when you get contacted by Internal Affairs

1. _______ A co-worker rushes over to you and says that after years of searching for his natural parents, (he was abandoned as a child in the Everglades) he found his birth mother after an extensive search on the Internet. She is in the middle stages of congestive heart failure and has private nursing care in her estate outside of West Palm Beach. He has no sick leave because he used it last year due to his complications with his liposuction surgery and he wants to save his annual leave for a scuba diving vacation in Bonnair next Spring.

   What is your advice?

2. _______ A member’s wife recently lost her grandmother to a serious illness. The grandmother lived with the employee and his spouse for many years, but was placed in a nursing home six (6) months ago. The employee’s wife is devastated, is incapable of making the funeral arrangements and cannot take care of the couple’s children, ages 2, 5 and 9.

   What do you say?

3. _______ A co-worker calls you and leaves an urgent message. You call back and are informed that she must leave tomorrow morning to travel to Kosovo to pick up her adoptive child. She has been working on this for months and she got the call yesterday that she can finally pick-up her new baby. She needs at least two (2) months off to arrange childcare, to bond etc. Due to a serious illness last year she has no leave left.

   What is your advice?

4. _______ Another co-worker whose wife had a baby in January of 1998 wants to take a few weeks off to paint the house since he never got around to it last year with the new baby and everything else. The place is looking shabby, his wife is two (2) months pregnant, he is working flexiplace, he really wants to finish the paint job before the new baby is born. He has already used all his annual leave on a family vacation. He only took off two (2) weeks using comp-time credit hours and LWOP when the baby was born in 1998. Since he could have taken more FMLA time then, he wants to know if he can take it now.

   What do you say?

5. _______ A Union member says he just asked his manager if he could take one (1) hour of leave each morning so that his mother won’t be alone. She is in the early stages of Alzheimer’s. His manager laughed and told him to get her Direct TV.

   What can you do?

6. _______ A member asks you if he can take sick leave to take his brother to the dentist for a root canal.

   What do you say?

7. _______ An employee is furious and indignant that her supervisor won’t let her take off to visit pre-schools for her two year old, Tiffany, who she claims is gifted.

   What is your advice?

8. _______ In October, an employee scheduled surgery for a hysterectomy in December, based upon the availability of a doctor covered by her health plan and the pre-approval process this insurance plan required. She had requested six (6) weeks of LWOP under the FMLA, which was approved. She found out three (3) days ago, on Halloween, that her insurance company refused to pay for the surgery. She immediately called her attorney who fired off a letter threatening litigation. She just found out that the insurance company has agreed to pay for the surgery and that a leading specialist who just joined her plan can perform the operation the day after tomorrow. Her manager refuses to approve her new request for six (6) weeks of leave without pay because she did not provide adequate notice. She only has a sick leave balance of 75 hours.

   What can she do?

9. _______ An employee was given 12 weeks of approved FMLA leave without pay to care for his seriously ill father in Maine. His father died after the 9^th week, and the employee stayed in Maine, made funeral arrangements, attended to his father’s affairs. He was very depressed and for the last two (2) weeks simply could not leave his father’s house. He never called in to work. The Agency found out when his father died after the employee has been back at work for a month.

   What now?

10. ______ An employee who recently transferred to your team asks if you can help him get 200 hours of AWOL converted to LWOP. He says he experienced a major depression six (6) months ago. His wife, an alcoholic, finally agreed to enter an in-patient treatment program and he needed to care for his children. His wife left him for a man she met while in detoxification and he couldn’t take it. He has been treated by a psychologist and he is taking Prozac, or what he terms vitamin P. His manager was verbally abusive when he called in for sick leave and demanded that he provide extensive medical documentation, including all his psychiatrists’ notes. His psychiatrist, from the local VA Hospital; has over 150 patients, and only provided a two-(2) paragraph description of the employee’s condition nearly a month after the employee requested it. The employee turned the medical documentation into the agency but the manager rejected it and wants to speak to the psychiatrist himself. The employee is feeling much better now and wants to do something about the AWOL before the agency disciplines him.

    What do you say?

1. Ellshoff v. Department of the Interior 97 FMSR 5438 (1997)

   The employee, a GS-9 Botanist, transferred from Hawaii to Minnesota. She suffered from severe depression, requested annual leave, but the agency, who had previously placed her on leave restriction status due to her excessive absences, denied her request and charged her with AWOL. The employee received extensive treatment and hospitalization for her depression and presented medical documentation to the agency recommending leave from work. When she returned to work two (2) months later, she submitted the requisite forms to request leave, including leave under the (FMLA) for her absence. The agency denied the request and removed her for AWOL and for medical inability to perform her duties. Among other things, the agency argued that the employee had not been forthcoming with medical information, her performance was unsatisfactory, and she had not explicitly invoked the FMLA in initially requesting FMLA-qualifying leave. In concluding that the agency failed to prove its charge of AWOL, the Board found the following:

   10

   There is no basis for treating the FMLA and its implementing regulations differently from other leave related charges. Thus, contrary to its prior discussion in Ramey v. Postal Service, 96 FMSR 5184 (1996), which held that violation of the FMLA is an affirmative defense to be proven by the employee, the Board found that, where the facts either specifically raised by the appellant or otherwise shown by the record will consider and apply the FMLA without shifting the burden of proof to the appellant. In those circumstances, the agency now has the burden of proving that it properly denied FMLA leave in charging the employee with AWOL.

   20

   The appellant’s depression was a "serious health condition" covered by the FMLA and rendered the appellant unable to perform the functions of her position during the absence in question.

   30

   The employee satisfied the notice requirements of the FMLA. The Board looked at these factors. The employee’s doctor had provided advance notice to the agency of her need for leave due to her disabling depression and subsequently kept the agency apprised of the progress of her condition until she returned to work. The regulations state a nonspecific notice standard applicable for unforeseeable absences. The employee was suffering from a medically documented, severe psychiatric condition. The agency argued that the employee’s initial notice was deficient because she failed to explicitly invoke the FMLA, which she invoked only after returning to work. The Board disagreed, however, citing Manuel v. Westlake Polymers Corp., 66 F.3d 758 (5^th Cir. 1995). In Manuel, the court found there was nothing in the FMLA or its legislative history to warrant requiring the employee to explicitly invoke the FMLA in requesting FMLA-qualifying leave. The Board found that, although the court in Manual was considering Title I of the FMLA, applicable to private-sector and Postal employees, the notice provisions under Title I and Title II were identical in material respects and Manuel, therefore, constituted persuasive authority on this issue.

   40

   The employee submitted timely and substantively sufficient written medical certification. In this case, the agency requested such certification in a letter but did not specify a deadline for the employee to submit the certification. The employee’s doctor communicated with the agency regarding her condition subsequent to the agency’s letter, but the employee did not submit the medical certification until her return to work. The Board found that the employee’s submission of the medical certification upon her return to work was not untimely considering the circumstances: a) the agency’s letter did not set a deadline; b) the FMLA and implementing regulations did not set a specific time limit for the submission of medical certification; c) the employee’s doctor periodically communicated with the agency regarding her condition; and d) the employee was suffering from a medically documented, severe psychiatric condition during the relevant time. The Board also found to be sufficient the substance of the doctor’s report, which described the history and progress of the employee’s depression, when and how it became incapacitating, how it was treated, and the duration of the incapacity. Although the agency argued that the doctor’s report did not contain all of the information the agency requested in its letter, the Board found the FMLA’s medical certification requirements to be much less stringent than those contained in the agency’s leave restriction letter. The fact that the doctor’s report did not satisfy the agency’s requirements did not warrant denial of FMLA leave. The Board stated that the FMLA provides that a medical certification shall be sufficient if it satisfies the minimum requirements, and the agency made no attempt to obtain any further medical opinion, it could not deny her FMLA leave based on any alleged deficiencies in her medical certification.

2. Gross v. Department of Justice, 97 FMSR 5465

   The employee was a GS-9 Border Patrol Agent with INS in Nogales. His annual leave request was denied because the Agent was classified as "excepted" during a government furlough caused by the lack of an appropriations law funding the agency. On December 21, the employee was told by his brother in California that his mother, with a heart condition, had taken a turn for the worse. On December 23, the employee called his supervisor and requested that he be put on furlough so he could visit with his mother, stricken by congestive heart failure for her last Christmas. He put his request in writing the next day, December 24^th and met with his supervisor. Not hearing from the Agency he visited his mother for five (5) days, was placed on AWOL and given a 20 day suspension for failing to follow established leave procedures and AWOL. The Agency also argued it could not grant leave because the agency was operating under a furlough in which the employee’s position was designated "excepted."

   The MSPB reversed the suspension. The employee established his mother suffered from a serious health condition. The Board stated again that the employee is not required to specifically invoke the FMLA in requesting leave since the agency did not dispute that he was needed to care for his mother, nor did the agency contest the urgency or unforeseeability of his December 24^th leave request for this purpose. Also, the agency had not required the employee to submit medical certification regarding his mother’s condition. The Board found that the employee’s actions of phoning his supervisor, visiting him, and leaving a signed memorandum, stating that he was needed to care for his seriously ill mother, were sufficient to satisfy the notice requirements of the FMLA and to invoke entitlement to leave under it even though the employee did not explicitly invoke it.

   The Board next found that the employee was entitled to be placed on leave without pay (LWOP) under the FMLA. Notwithstanding the furlough and the resulting cancellation of all leave, the agency retained some discretion in granting leave to "excepted" employees such as the employee. The MSDB found that by failing to grant the appellant LWOP to care for his seriously ill mother, and then placing him in AWOL status and suspending him, the agency interfered with his rights under the FMLA.

3. Burge v. Department of the Air Force, 99 FMSR 5178 (1999)

   The employee, a GS-9 Safety and Health Specialist, was discharged for AWOL amounting to 30 days. The MSPB held that the agency cannot impose more burdensome requirements for medical certification than those contained in the FMLA. When a federal employee requested the medical documentation from his health care provider but could not obtain medical documentation on a timely basis or meet an agency’s deadline because the health care provider was not able or unavailable to provide the documentation, an employee has made a good faith effort, the matter was beyond his control and the agency should accept the documentation. When an employee requests leave under the FMLA, an agency must give guidance concerning the employee’s rights and obligations. The employee does not have to even specifically mention the FMLA to benefit from this legal entitlement.

Haire v. U.S. Postal Service 97 FMSR 7021 (Fed. Cir. 1997)

(Postal workers medical report stating that the employee was capable of some work did not invoke right to FMLA leave)

Young v. U.S. Postal Service 98 FMSR 5213 (1998)

Removal sustained for employee who while on approved FMLA leave to care for terminally ill father, did not return to work until two (2) weeks after death of the father. Notice of FMLA leave by employee’s son is sufficient.

Sloop v. ABTO 4^th Cir. No. 98-2440 (May 6, 1999)

In private sector case, court rules that an employee’s absence for alcoholism, (was opposed to treatment for substance abuse) is not covered by the FMLA.

Aerospace Center Support 112 LA 108’; BF Goodrich 111 LA 602; Pace Industries, 109 LA 1; Oxboro Clinic 108 LA 11; Grand Haven Stamped Products 107 LA 131; City of Albuquerque 106 LA 577.

10

The Family and Medical Leave Act, 5 USC § 6381 – 6387

20

5 CFR Part 630, Absence and Leave Regulations

30

May 24, 1999, Presidential Memorandum for Heads of Departments and Agencies entitled, "New Tools To Help Parents Balance Work and Family" which requests OPM to promulgate regulations allowing federal employees to use up to twelve (12) weeks of accrued sick leave to care for a spouse, son daughter or parent with a "serious health condition".

40

April 11, 1997 Presidential Memorandum for Heads of Executive Departments and Agencies, asking that agencies ensure that federal employees be granted up to 24 hours of LWOP each year for the following:

• School and Early Childhood Educated Activities
• Routine Family Medical Purposes in addition to the FEFFLA
• Elderly Relatives Health or Care Needs in addition to the FEFFLA

40

July 11, 1994 Presidential Memorandum for Heads of Executive Departments and Agencies entitled "Expanding Family Friendly Work Arrangements in the Executive Branch".

50

OPM Publications

A0 Family Friendly Leave Policy

B0 Index of Laws and Regulations Relating to Leave Administration

C0 Frequently Asked Questions About Leave

D0 Fact Sheets