Are You Required to Invoke FMLA?

We receive many inquiries from employees confused by the Family Medical Leave Act 20130225-informed-fed-logo_150(FMLA) in relation to serious health conditions and the use (approval/denial) of leave.  Typically, questions come in the context of protections afforded by The Act and the necessity of having to invoke The Act to use accrued leave in connection with a serious health condition; typically following notification from an agency.  This article is intended to address the latter question.  Specifically,

Are federal employees required to invoke the Family Medical Leave Act to use accrued leave in connection with a serious health condition?

The short answer is no.  Read on for the long answer.

 

Cautionary note: There are a myriad of influencing factors considered by agencies (correctly or incorrectly) potentially affecting information provided in this article.  Factors may include agency regulations, local practices, bargaining agreement provisions, local supplemental agreements, personal views, poor training, bad advice, to name just a few.  However, rarely will such factors be controlling, or otherwise nullify information provided here. Nevertheless, we always recommend employees and supervisors consult agency-specific human resources guidance and review applicable policies in collective bargaining agreements for information specific to their agency.

Use of Accrued Leave in Connection with a Serious Health Condition

If an employee posseses accrued leave (positive leave balance), there is no requirement the affected employee first be approved under the FMLA prior to a supervisor approving the use of accrued sick leave (SL) or accrued annual leave (AL) in lieu of sick leave, regardless of the duration.  Simply put, leave is approved or denied under the authority of the leave approving official responsible for the affected employee, in the same manner as unscheduled (“call in”) sick leave. It is true, many agency management officials may mention agency regulations or cite restrictions imposed by bargaining agreements or even statutory law in denying the request to use accrued leave and directing an employee to file for FMLA.  However, the supervisor generally maintains ultimate discretion in whether to approve the use of accrued leave in connection with serious health conditions requiring “unusual” use of sick leave or even annual leave in lieu of sick leave, without regard to invocation of the Family Medical Leave Act, regardless of duration or whether the leave is intermittently used over an extended period of time (like for dialysis treatments).  It has been our experience, once an employee requests significant leave associated with a health condition or treatment needs, many leave approving officials mistakingly apply much more rigid standards concerning Leave Without Pay Requests (LWOP), rather than a request to use accrued leave.

For example, in it’s Fact Sheet on Annual Leave, the Office of Personnel Management (OPM) , the agency with authority and oversight of all federal Human Resources, provides,

Ultimately, supervisors are responsible for the overall planning, coordination, and approving of their employees’ annual leave throughout the leave year so that the agency’s mission and employees’ needs are met, and so that employees do not approach the end of the leave year with a significant amount of annual leave that must be used or forfeited.

Concerning the use of granting annual leave in lieu of sick leave, the Office of Personnel Management advises agencies,

Employees may request annual leave instead of using sick leave. Although an employee may request annual leave for sick leave purposes, annual leave is subject to supervisory approval and may be denied. If an employee chooses to use annual leave for sick leave purposes, he or she may want to share the reason for the request with the supervisor so that the request receives proper consideration.

The Office of Personnel Management does provide support for an agency official to request supporting evidence for the use of sick leave.  For example, in its Fact Sheet on Sick Leave, OPM provides such authority in the following form,

An agency may grant sick leave only when supported by administratively acceptable evidence. For absences in excess of 3 days, or for a lesser period when determined necessary by the agency, an agency may require a medical certificate or other administratively acceptable evidence.

However, even though the OPM language seems very prescriptive, standing alone, the very next sentence of the OPM guidance goes on to state,

An agency may consider an employee’s self-certification as to the reason for his or her absence as administratively acceptable evidence, regardless of the duration of the absence. Employees should consult their agency-specific human resources guidance and review applicable policies set forth in collective bargaining agreements for information specific to their agency.

Therefore, unless your agency regulations specifically remove the OPM provided discretion from the leave approving official, that official maintains discretionary authority concerning the approval of all leave requests in conjunction with not only “routine” sick leave use, but also concerning serious health conditions, regardless of the duration or frequency of leave needed. Nevertheless, we always recommend employees and supervisors consult agency-specific human resources guidance and review applicable policies in collective bargaining agreements for information specific to their agency.

Remember, the simple fact the leave approving official has discretion in the context of this discussion also supports the ability of the leave approving official to deny a request or request supporting medical information in connection with the request.  Discretionary authority usually “cuts both ways.” Put plainly, the supervisor is under no obligation to approve your request.

When You May Need to Invoke FMLA

Too often we see employees invoking FMLA in response to supervisors who inform the employee of “the requirement” prior to considering whether to grant the leave request (of accrued leave).  In many instances, we advise supervisors to simply grant the employee the requested leave if they can otherwise spare the employee in consideration of agency workload.  However, there are indeed times when an employee should invoke the Family Medical Leave Act and seek its protection.  “Filing for FMLA” and subsequently being approved (determined eligible) for FMLA eliminates agency discretion in denying leave requested in connection with the underlying serious health condition for which FMLA was granted.

Removing Agency Discretion in Denying Requested Leave

Employees covered by and otherwise eligible for the Family Medical Leave Act, are entitled to request and receive up to twelve weeks of unpaid or paid leave every year due to their own serious health conditions or for specified family members with serious health conditions, and for birth, adoption, or fostering of a child. Leave may be taken continuously or intermittently. Eligible employees may also take up to twenty-six weeks to care for an injured or ill servicemember or veteran. Once in an approved FMLA status, discretion concerning the denial of accrued leave requested in connection with FMLA is largely removed in that the agency must approve the request.

Leave Without Pay (LWOP) and Advanced Leave are generally discretionary in that agencies have no obligation to grant an employee’s request for LWOP or Advanced Leave absent a specific statutory or regulatory right to either. See, Campana v. Department of the Navy, 89 FMSR 7004 , 873 F.2d 289 (Fed. Cir. 1989); Jones v. Department of Transportation, 295 F.3d 1298 (Fed. Cir. 2002).  However, a refusal to grant LWOP must be reasonable. See, Young v. Department of Veterans Affairs, 99 FMSR 5346 , 83 MSPR 187 (MSPB 1999).  The ability to return to work is also a factor in LWOP consideration in that the Merit Systems Protection Board has found denial of LWOP, even in the face of medical evidence showing the employee is unable to work, is appropriate if there is no foreseeable end in sight to the absence and the absence is a burden to the agency. See, Brown v. Department of Justice, 115 LRP 3466 (MSPB 2015, nonprecedential), citing Young v. Department of Veterans Affairs, 99 FMSR 5346 , 83 MSPR 187 (MSPB 1999).

As indicated above, LWOP is discretionary absent a distinct entitlement.  Invoking the Family Medical Leave Act removes agency discretion and entitles an eligible employee to up to twelve weeks (480 hours) of leave without pay. Note, we are only covering LWOP at this point.  However, the entitlement to use leave, once eligible under the FMLA, also applies to accrued sick and annual leave whereas the granting of advanced leave, generally remains discretionary except for certain reasons (birth, adoption, foster care, wonder warriors, etc..). For more information, see Presidential Memorandum — Modernizing Federal Leave Policies for Childbirth, Adoption and Foster Care to Recruit and Retain Talent and Improve Productivity.  Also note, as of January 6, 2017, there is an expectation the incoming President will rescind this memorandum.

Summation

This article is not intended to cover every aspect of leave or FMLA administration.  It’s primary purpose was to convey the fact that an employee’s request to use accrued leave in connection with a serious health condition for himself or family member, and certain other similar matters, does not require the employee to invoke the FMLA entitlement as a condition to leave approval. The supervisor has discretion to approve the request without FMLA. However, if a supervisor does not approve the leave request, or if the employee needs to request approved non-pay status (LWOP), invoking and obtaining eligibility for FMLA will ensure leave approval.

 

 

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