While it was not dispositive of the case, the Board in Smith v. Dept. of the Interior, DC-0752-09-0135-I-1, 2009 MSPB LEXIS 2080 (April 17, 2009) applied the wrong FMLA standard on eligibility. In so doing, the Board also cited to two different variants of the FMLA as if they were interchangeable.
Citing 29 USC 2611(2)(A)(ii), the Board incorrectly stated that, to be eligible for FMLA leave, an employee must have been employed with a covered employer for at least 12 months and worked at least 1250 hours of service proceeding the use of FMLA leave. The Board cited part of the Title I eligibility standard. The Board did not explain, nor is it otherwise apparent from the facts, why the Title I eligibility standard would apply to Ms. Smith, A GS-7 Secretary with the U.S. Geological Survey. Under Title II, the 12-month of employment (as a Title II employee) eligibility standard is incorporated into the definition of "employee." 5 USC 6381(1)(b). Title II does not require 1250 hours of service prior to leave commencement in order for a Title II federal employee to be eligible for FMLA leave.
Inexplicably, after incorrectly citing the Title I eligibility standard, without skipping a beat the Board goes on to correctly cite Title II standards by reference to various sections of Title 5 and 5 CFR Part 630. Apparently, the Board is of the mistaken belief that the statutory and regulatory requirements of Title I and Title II are interchangeable. The MSPB need look no further than the eligibility requirements to confirm that the statutory and regulatory requirements of the FMLA are not identical and, therefore, are not interchangeable.
After 16 years, the MSPB needs to accept that Titles I and II of the FMLA apply to different segments of the federal workforce. Moreover, they are not identical. If they were Congress would have had no need to create two entirely different statutes and direct two different federal agencies, the DOL and the OPM, to create two separate sets of FMLA implementing regulations.
The fact that Title II FMLA requirements do not apply to Title I employees is manifest in the OPM regulations. The OPM regulations specifically exclude from the definition of a Title II covered "employee" any employee covered by Title I of the FMLA. See 5 CFR 825.1201(b)(2)(iv). Similarly, the DOL regulations exclude employees covered by Title II from coverage by Title I of the FMLA. 29 CFR 825.109(c). It should go without saying that the Board should only apply the correct version of the FMLA to the facts at issue.
Comment: Attorneys and others with appeals containing FMLA claims before the MSPB will need to school the judges on which version of the FMLA applies to the facts at issue so that your client's FMLA rights are protected from errant decisions based on FMLA standards that don't apply to your case. The MSPB badly needs some remedial FMLA training.