No Paid Sick or Annual Leave. What About FMLA Leave for Excepted Employees?

Amid the shutdown, much emphasis has been placed on the morale-crushing requirement for excepted employees to show up to work each day with delayed pay or be deemed absent without leave (AWOL) and face disciplinary action. Paid annual and sick leave are not part of the equation. One big question is whether the same is true for Family Medical Leave Act (FMLA) leave.

In an open letter to congressional leaders, National Air Traffic Controller Association (NATCA) leadership said, “[T]hose controllers who show up to work every day will no longer be able to access their federally guaranteed Family Medical Leave Act days, or use their sick leave.” It’s not clear whether NATCA was referring to paid or unpaid FMLA leave, but I’d say unpaid FMLA leave is an option for excepted employees.

Before I delve deeper into this debate, let me cover the basics. First, the reason why previously approved paid annual and sick leave must be cancelled lies in the Anti-Deficiency Act, which prohibits federal officials and employees from engaging in unauthorized spending. However, so long as an excepted employee is on leave without pay (LWOP), these spending concerns are avoided; hence, there is no Anti-Deficiency Act violation. By definition, FMLA leave is unpaid leave, (i.e., LWOP). Federal employees can normally substitute paid sick and/or annual leave for FMLA LWOP for up to 12 weeks per year, but they cannot do so during a government shutdown. However, unpaid FMLA leave should still be available to excepted federal employees who otherwise qualify for and need it, even during the shutdown.

Second, excepted employees need to keep in mind that they cannot use FMLA leave for a mental health day or because they have a case of the sniffles or a child is home sick with a fever. OPM’s FMLA regulations under 5 C.F.R. 630, Subpart L allow eligible employees to take up to 12 workweeks of unpaid leave for, among other things, the care of a spouse, son, daughter, or parent suffering from a serious health condition or if the employee cannot work due to his or her own serious health condition. A “serious health condition” means any “illness, injury, impairment, or physical or mental condition” involving inpatient care or certain types of treatment by a health care provider generally following periods of incapacity lasting at least three consecutive calendar days.

The Merit Systems Protection Board (MSPB) case Floyd J. Gross III v. Department of Justice (1997) involved a Border Patrol agent who had been suspended for 20 days after he went AWOL for five days. In early December 1995, the agent had requested annual leave for the last 10 days of the year so he could visit his ill 67-year-old mother who had suffered from a heart attack. That request was at first approved, but the leave was cancelled mid-month because the agency ran out of funding. Shortly before Christmas, the agent renewed his leave request and asked to be put on furlough. He informed his immediate supervisor that his mother had taken a turn for the worst and he needed to take care of her affairs and arrange for her personal care.

An MSPB administrative judge initially found the agency properly placed the agent in AWOL status because he did not follow acceptable leave procedures. Further, the administrative judge found the agent – an excepted employee – was not entitled to FMLA leave due to the fact that at the time he made the leave request the agency was operating under a furlough.

On appeal, the Board disagreed with the administrative judge and found the agent’s family medical emergency did qualify him for FMLA leave. The Board pointed out that even though the Anti-Deficiency Act required the agency to cancel previously approved leave, “the agency retained some discretion in granting leave to ‘excepted’ employees….It follows logically then that, if the agency had the discretion to grant ‘excepted’ employees paid leave, it also had the discretion to grant them LWOP because such grant did not require the agency to make or authorize an expenditure or obligation.” The Board added that the agent’s request to be furloughed “was tantamount to a request for emergency medical LWOP under the FMLA.” The agency, the Board added, was unreasonable in denying the LWOP and it violated the FMLA by not granting the LWOP.

In sum, excepted federal employees are legally entitled to take up to 12 weeks of unpaid FMLA leave during a shutdown furlough. However, it would be more beneficial to such an employee to actually be furloughed than to be placed on LWOP under FMLA, as the latter would be deducted from the employee’s 12-week annual FMLA leave limit, whereas the former would result in the employee likely being retroactively paid for that time once the shutdown is over and would not reduce their annual FMLA allotment. The grant of FMLA LWOP time is not discretionary if the employee qualifies for it. Discretion comes into play as to whether the employee is furloughed instead of being placed in FMLA LWOP status for the duration of the serious medical condition or 12 weeks, whichever is shorter.

Federal employees with questions about whether they qualify for FMLA leave or who have been subjected to retaliation for taking FMLA leave should immediately contact a federal employment attorney.

© 2016 Mathew B. Tully, Esq.. All rights reserved. This article may not be reproduced without express written consent from Mathew B. Tully, Esq..

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at mtully@fedattorney.com. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.

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  1. Steve Neal says:

    So, I’m assuming this congressional meltdown ends with a temporary CR, which may end again in December 2013. I have five weeks approved sick/annual leave (with the “FSLA box” checked) for all of this December and the first week of January 2014 to see my first grandchild’s birth and help out at my daughter’s home for as long as necessary. My plan is to “spend” my own leave, but knowing the pending gov’t chaos, I also checked the FSLA box so I can safely remain away from work (LWOP) even if we are shut-down again during my time away. The court case supports this, but I’m not 100% certain…

    We furloughed all our HR reps so I have no one else to ask, but does anyone know if this will cover my leave plans in case the gov’t holds us hostage again?

  2. Karin says:

    The Thirteenth Amendment:Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
    Section 2. Congress shall have power to enforce this article by appropriate legislation.[1]

    • retired worker fed says:

      your point is?

      • Karin says:

        Compelling people to work without pay by order of the government is a violation of the 13th Amendment. The President of Lincoln, just became the largest slave holder in U.S. History.

        • mandinka says:

          Think about the poor taxpayers that have their wages confiscated by the govt

        • retired worker fed says:

          First, when you work for the federal government and this situation comes up, you know you will be required to work. You also know that when the situation is resolved, you will be paid. This is not slavery. I would be happy to go back to work and be guaranteed my pay.

          • Karin says:

            What else do you call it, when your compel people to work and not pay them?

          • retired worker fed says:

            The thing is they will be paid. The budget or CR must be passed.

          • tdecker says:

            your are not Guaranteed to be paid if the same people that caused this mess dont pass legislation to give you your back pay you may not get it.

  3. HappilyRetiredFed says:

    So if an excepted employee takes ill with a life threatening condition they will be reprimanded if they fail to show up for work? I hope the government will be compassionate with the LWOP in a situation like this.

  4. zoe2013 says:

    I am an excepted employee. I am taking an intensive graduate class next week, and would’ve been using 27 hours of annual leave (Monday and Tuesday I already have off for my compressed day and my holiday). Because of the shutdown, I can’t take the leave but I will actually be on furlough next week. Then I can be reinstated when I get back the following Monday. I had to sign a furlough form yesterday. It is SUCH a mess. BUT at least I get to save those 27 hours of annual leave for later, and maybe still get paid for next week if the bill gets passed to pay furloughed workers. I’d rather the shutdown be over and we not be in this mess, but since I don’t know if I’ll get my paycheck on the 25th, I’ll take what I can get.

    • itchyscratchybunghole says:

      Once you get your advanced degree quit the government and get a real job where your education will be utilized. I’m a fed with an advanced degree and I feel like vomiting whenever I have a meeting with my management……many of whom barely graduated HS and think they know everything. Without the use of contractors nothing would get done…not a f’ing thing….

    • Fella says:

      Assuming the bill goes through, and I think it will, talk about timing……. lol

    • retired worker fed says:

      According to the article, consider yourself lucky to be furloughed. You were not sick. Of course I could be reading your blog incorrectly. Good luck with the course.

  5. RsubG says:

    I’m paid by WCF. I took sick leave when my wife went into labor. According to the article excepted fed’s can’t take sick leave because it would be an ADA violation but WCF are not appropriated funds but rather a cash account. It would seem that I will be paid for my sick leave taken during the shutdown if I’m understanding this?

    • Devsfan says:

      Yes. I’m also at a WCF and we’ve still been allowed to take leave during all this because it’s coming from our cash account and not from congress. When the money runs out however I’m not sure how this will all turn out.

      • RsubG says:

        Yeah I was wondering the same thing. From what I believe is true the Army has not been given their OMA budgets for FY14 which is what they use to buy repair parts from the Army WCF. By law all of the WCFs have to maintain a minimum balance and if money isn’t coming in but sites are still operating and spending money it seems that there will be a breaking point some day.

    • retired worker fed says:

      Good grief, you were disabled. No manager in his (her) right mind will make you work. Congrats on your newborn. Hope everything is ok. Sorry I read it wrong. Still, you should be allowed to be off under those circumstances.

  6. Manny says:

    Excellent article. Thank you!!

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