The Federal Sector FMLA Blog

Still Not Getting It After All These Years: The MSPB Applies the Wrong FMLA Standards

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.     

MSPB Confusion Re: Federal Sector FMLA Rights Continues

When it comes to the FMLA rights of federal sector employees the MSPB simply doesn't get it.

In Hines v. USPS, No. DE-0752-08-0033-I-2, 2008 MSPB LEXIS 5066, at * 5 (Oct. 29, 2008), the employee appealed his removal for absenteeism by alleging that his absences should have been covered by the FMLA as he requested.  In discussing the employee's FMLA rights, the Board referenced the statutory provisions of Title II of the FMLA (5 USC 6381, 6382).  Postal employees are covered by Title I of the FMLA. See 29 CFR 825.109(b)(1).  Postal employees have never been covered by Title II of the FMLA.  Thankfully, notwithstanding the Board's reliance on the wrong FMLA statute, it appears that they achieved the correct result.  The Board found that the FMLA did not protect the absences that formed the basis of the removal because they exceeded the scope of the medical certification provided. 

Comment: The FMLA has been in existence for over 15 years.  During that time the Postal Service has always been covered by Title I of the FMLA. Title I is codified at 29 USC 2601, et. seq.  DOL regulations implementing Title I are codified at 29 CFR Part 825.  The FMLA rights of civil service employees set forth in Title 5 and in OPM regulations at 5 CFR Part 630 do not apply to Postal employees.  When it comes to the FMLA rights of Postal employees, citation to Title 5 and 5 CFR Part 630 is always incorrect.   

Moreover, as I discussed in my post of April 28, 2008, there are four different variants of the FMLA that apply to different segments of the federal workforce.  Critically, the FMLA rights of federal employees are not always the same.  As such, it is not safe to assume that it doesn't really matter whether the OPM or DOL FMLA regulations are cited because, in the end, they substantively provide the same rights.  They do not.  If anything, the DOL's recent revision of their FMLA regulations has, in many instances, increased the differences with OPM's FMLA regulations.                    

MSPB Confusion Over FMLA Rights

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. 

 

Board Finds FMLA Medical Certification Inadequate and Sustains Removal

In Kimbrough v. Dept. of Defense, No. DC-0752-06-0287-I-1, 2006 MSPB LEXIS 4379 (Aug. 1, 2006) the Board sustained the agency’s removal of the Kimbrough for AWOL and failure to follow established leave procedures.  In so holding, the Board found that the Defense Contract Management Agency (DCMA) properly denied Kimbrough’s request for FMLA leave due to insufficient medical documentation.  Kimbrough requested FMLA leave after sustaining a knee and back injury which apparently required surgery.  In response to the DCMA’s request, he provided a medical Certificate of Health Care Provider signed by his family practice physician.  DCMA found the medical certification insufficient, notified Kimbrough of the deficiencies and requested additional medical information.  Kimbrough refused to provide the additional information.  He was subsequently removed.

The Board initially noted that DCMA had the right to require Kimbrough to support his request for FMLA leave due to his own injury with medical certification. Pursuant to 5 USC 6381, such certification must include the probable duration of the condition, the appropriate medical facts within the knowledge of the health care provider regarding the condition, a statement that the employee is unable to perform the functions of the position, and information on the duration and frequency of any intermittent absences.  The Board found that the certification provided by Kimbrough did not satisfy these minimum requirements. The Board found that the statement of “medical facts” was insufficient because it generically described fairly common conditions, and did not describe how those conditions prevented Kimbrough from performing his duties.  A statement that the probable duration would “be determined after consultation with an orthopedic surgeon” was found insufficient.  The Board similarly found deficient the certifications representation that the probably number and frequency of intermittent absences would be determined after consultation with an orthopedic surgeon. 

The Board concluded that, because of such deficiencies, the DCMA reasonably requested Kimbrough to provide additional information regarding his medical condition, along with his rights and responsibilities. When he refused to provide additional information, the Board found that DCMA properly cited Kimbrough as AWOL and failure to follow leave procedures.   

Comment:  The decision may have inadvertently applied the wrong FMLA variant, although the result would not change.  The Board determined the adequacy of the medical certification by reference to the requirements of Title II of the FMLA.  Kimbrough, the Board noted, was in the “federal civilian service” of the military.  Title I of the FMLA applies to civilians in the military departments, not Title II.  29 CFR 825.800 (definition of employee).  Title II applies to civil service employees.  Title II, like Title I, however, requires the same medical certification information at issue (e.g., medical facts, probable duration, frequency and duration of need for intermittent leave).  Moreover, the Board in Kimbrough further found that, even if he should have been granted FMLA leave, it would have sustained the removal anyway based on the 3 months of AWOL not covered by the FMLA. 

FMLA Supersedes Board Doctrine Permitting New Evidence of Incapacitation on Appeal

In Dias v. Dept. of Veterans Affairs, 2006 MSPB 124 (May 11, 2006), the Board held that the FMLA right of an agency to require an employee to provide medical documentation “in a timely manner” supersedes the long-held Board doctrine permitting an employee to defend against a leave-related adverse action by presenting, on appeal, evidence of incapacitation for duty that was never submitted to the agency prior to the adverse action.  The FMLA contains its own mechanism for resolving a dispute regarding the sufficiency of medical evidence submitted in support of a leave request.   The Board is not part of this dispute-resolution mechanism devised by Congress, which is intended to achieve a “final” and “binding” determination on the employee’s need for FMLA leave.  The Board continued:

Simply put, the Board cannot allow an employee to bypass this scheme by ignoring the agency’s request for medical evidence under 5 U.S.C. 6383 and then attempting to present evidence to support the leave request for the first time in a Board appeal.

The Board went on to find that, if an employee is not on notice that she is required to submit evidence to the agency to support an FMLA leave request, it may be appropriate for the Board to consider evidence submitted for the first time on appeal.  Similarly, if the employee made some effort to support her request for LWOP with documentation and the agency found her documentation to be inadequate but did not provide guidance regarding what precisely it would deem adequate documentation, such lack of guidance could provide a basis for considering the employee’s evidence that was submitted for the first time on appeal.  The Board found that none of these exceptions applied because the agency had properly and repeatedly notified the employee of the requirement to submit medical certification to substantiate her need for FMLA leave.  As such the Board rejected the employee’s evidence of her own health condition and that of her parents that was submitted for the first time on appeal.  Absent such evidence, the Board sustained the AWOL charge.

Comment:  The decision points out the minimalist agency notice requirements of the OPM implementing regulations.  Title II does not specifically require an agency to notify an employee that the employee will be required to timely submit medical certification confirming the need for FMLA leave.  Rather, the OPM regulations broadly require agencies to inform its employees of their entitlements and obligations by providing access to Title II of the FMLA and the OPM implementing regulations. It is not clear that such access would meet the Board’s notice standard to preclude new evidence of incapacitation from being introduced for the first time on appeal.  Note that the Board in Dias approved of the agency’s notice by written letter directly to the employee.  It also favorably approved of notice through the employee’s union representative, although it is unclear whether this notice was oral or in writing.  Similarly, OPM’s FMLA regulations do not require agencies to notify employees when the certification is incomplete.  Agencies wishing to avoid the consideration of new evidence of incapacitation at a Board hearing must timely notify the employees of any certification deficiencies and provide them with a reasonable opportunity to cure those problems.  The Board appears to be imposing agency medical certification notice requirements that are very similar to those that apply under Title I of the FMLA.

Agency Burden of Proof before MSPB When Charging Unauthorized Leave

An agency has the burden of proving that it properly denied Family and Medical leave Act leave in charging an employee with unauthorized absence.  Johnson v. Dept. of the Interior, 2006 MSPB LEXIS 4372 (Aug. 21, 2006).

Request for FMLA Leave Negates MSPB Jurisdiction for Constructive Suspension

In Hess v. U.S. Postal Service, 2006 U.S. MSPB LEXIS 4188 (July 28, 2006), the employee filed an appeal with the Board because he was charged with being AWOL for approximately one-month.  The Board noted that it normally has no jurisdiction to review an agency’s decision to place an employee in AWOL status. To assert jurisdiction over such an action, the Board must find that the placement on AWOL status constitutes a constructive suspension of more than 14 days.  Whether the employee or the agency initiated the absence in question is determinative of an appealable constructive suspension.  If the agency bars the employee form duty for more than 14 days the Board will find a constructive suspension.  If the employee voluntarily absents himself from work, the agency’s decision to place him in AWOL status is not a constructive suspension.  The Board found that Hess initiated the four-week AWOL absence at issue as evidenced by his request for FMLA leave for that period.  Because his absence was not at the behest, or under the control, of the agency, the Board lacked jurisdiction over the appeal.

MSPB Applies Title I Standard for Adequacy of Employee Notice of Need for FMLA Leave

In Johnson v. Dept. of the Interior, No. DC-0752-06-0465-I-1, 2006 U.S. MSPB LEXIS 4372 (Aug. 2, 2006), the MSPB found that:

An employee is not required to explicitly invoke the FMLA, in requesting leave; it is sufficient that the employee make the agency aware of circumstances that would warrant leave under the FMLA.  Covington v. Department of the Army, 85 MSPR 612, 620 (2000).

The Covington decision cites the decision of the Board in Ellshoff v. Dept. of the Interior, 76 MSPR 54, 76 (1997).  In that case the Board applied the Title I standard of employee notice set forth in Manuel v. Westlake Polymers Corp., 63 F.3d 758, 762 (5^th Cir. 1995).  The Board found that, in terms of the adequacy of employee notice, the notice provisions of Title II, 5 USC 6382(e) and Title I, 29 USC 2612, were materially identical. 

Comment:    The MSPB has clearly indicated that employees covered by Title II need not specifically invoke the FMLA by name as part of the duty to request leave.  The Board will determine the adequacy of employee notice of the need for FMLA leave based on the standards developed under Title I of the FMLA. Federal agencies, therefore, need to keep current on Title I developments regarding the adequacy of employee notice of the need for FMLA leave. A counter argument could be made that the final OPM regulations implementing the FMLA require that an employee specifically invoke their right to FMLA leave.  See Comments accompanying publication of the final OPM FMLA regulations, 5 CFR 630.1203(b).  Employee notice requirements are addressed in Chapter 8 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc., 2003 & 2005 Supplement).