Recent decisions demonstrate that the Merit Systems Protections Board is confused regarding the FMLA rights of federal sector employees. The Board has repeatedly and incorrectly applied the wrong variant of the FMLA. It has also erroneously cited to the OPM and DOL FMLA regulations interchangeably as if those regulations both applied to all situations. That is simply not the case.
There are four federal sector variants of the FMLA that apply to different segments of the federal workforce. While identical in some areas, the variants are materially different in others. As such, the federal sector FMLA variants are not interchangeable. Application of the requirements of one variant of the FMLA may violate the FMLA rights of an employee covered by another FMLA variant. To avoid FMLA errors, the Board needs to apply the correct FMLA standard.