Until his termination for escalating attendance failures, Danny Williams was a medical support assistant with the U.S. Army and member of the AFGE bargaining unit. Prior to his removal, the Army required Williams to furnish acceptable medical certificate for each sick leave absence. He failed to support subsequent absences with the requisite medical documentation. He incurred absences without explanation. He offered a variety of excuses for other absences, including VA appointments, bronchitis, oversleeping, lacking transportation, and EAP attendance (which he did not in fact attend). Seeing no improvement despite progressive discipline, the Army proposed Williams' removal.
The AFGE grieved the removal. The Union argued that the removal was defective as the AWOL used to support Williams removal should have been classified as FMLA leave. The arbitrator sustained the removal without specifically addressing the Union's FMLA argument. The Union petitioned the Federal Circuit to review the arbitrator's decision.
The Federal Circuit found irrelevant the arbitrator's failure to address the FMLA claim because of Williams' failure to perfect his right to FMLA leave. Citing the notice and medical certification requirements governing civil service employees in 5 CFR Part 630, the Court determined that Williams had not timely invoked his right to FMLA coverage, and that he was prohibited from doing so retroactively. In the absence of reversible error, the Court affirmed the arbitrator's decision.
Comment: The Army and the Court applied the wrong FMLA standard. As a civilian employee of the Army, Williams was covered by Title I of the FMLA (DOL regulations), not Title II (OPM regulations). The DOL regulations define a covered employee (29 CFR 825.800) to include:
As a civilian in the military departments (as defined in section 102 of Title 5, United States Code).
Section 102 of Title 5 defines the military departments as the Army, Navy, and Air Force.
It is unclear whether the Court would have reached the same result had it applied the Title I FMLA regulations. On the one hand, it is unclear from the record whether Williams notified the Army that he needed FMLA leave. Certainly, lack of transportation is not covered by the FMLA. On the other hand, it is a question of fact whether oversleeping, bronchitis, VA appointments, and EAP attendance should have alerted the Army that Williams may have a serious health condition within the meaning of the FMLA sufficient to shift the burden of inquiry to the Army. Employees do not have to request FMLA by name, or even request leave at all. Rather, courts interpreting Title I have held that an employer must determine whether an employee is requesting leave covered by the FMLA based on all of the surrounding circumstances, including the employee's conduct. The MSPB has applied the Title I employee notice standard.
Under Title I, the Army may have been able to terminate Williams for failure to follow establish leave reporting procedures even if the the leave was covered by the FMLA.
I have tried in vain to get the military to explain to me why it applies Title II and not Title I to its civilian employees given the explicit coverage of military civilians in Title I.