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.
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