When is a Suspension a Suspension
In the context of a constructive suspension analysis and using general terms, a federal agency is empowered to (more common scenarios),
- Force federal employees to use accumulated leave (enforced leave)
- Force federal employees into a Leave Withouet Pay status (LWOP)
- Place a federal employee into an authorized absence status (with pay)
- Or otherwise control, restrict, or prohibit federal employee access to the workplace (you have no right to be in/at the workplace)
The question concerning all the above is what enforcement mechanisms do you have to overturn the status the agency placed you in and return to work. This article focuses on the Merit Systems Protection Board appeal route.
An employee’s voluntary absence from duty is never appealable. In all instances of forced leave status (“enforced leave”) resulting in either 1) loss of pay for 14 days or less or 2) “loss” of leave of 14 days or less OR the placement of the employee into a status that does not result in loss of leave or pay, for example authorized absence, of any duration, the employee appeal routes are either negotiated grievance, administrative grievance, or EEO if applicable (all are mutually exclusive in that you must elect a single forum). However, enforced leave of 15 consecutive days or more or any work status that results in a loss of pay of 15 consecutive days or more, to either a bargaining unit or non-bargaining unit federal employee, may be appealed to the Merit Systems Protection Board. MSPB recognizes “constructive suspension” claims typically arise in two scenarios, 1) when an agency places an employee on enforced leave pending inquiry into ability to perform; or 2) when an employee who is absent from work for medical reasons (like FMLA) asks to return to work with modified duties, and the agency denies the request. See, Zygas v. U.S. Postal Service, 116 MSPR 397 (MSPB 2011). In all cases, MSPB does not have jurisdiction if the Agency can demonstrate the employee voluntarily decided to remain absent from duty or if the employee is unable to show the agency placed the employee in a non-duty or non-pay status against the will of the employee.
Constructive Suspension Nuance
Understandably, there are all kinds of nuances associated with the issue of a constructive suspension and this article is not intended to cover every aspect. Furthermore, the application of this, or any, information is fact dependent on the specifics of your circumstances. However, employees should recognize they have MSPB appeal rights beyond a 14 day suspension resulting in loss of pay or leave but they generally do not have MSPB appeal rights if there is no associated loss of pay or leave beyond 14 days, for example when placed in an administrative leave status. For situations of 14 days or less, employees should either contact their local union officials or inquire about the agency administrative grievance procedure.
Some general points to consider:
- If an agency provides an employee a choice to return to their regular position and the employee is unable or unwilling to do so for any reason, the decision of the employee will typically be determined to constitute a voluntary election not to return to duty.
- The termination of a light duty assignment is not a constructive suspension when the employee has other choices such as requesting leave or filing a worker’s compensation claim. There are certain exceptions however (for example, the initiation of an absence from work after the employee requests to return to regular duties).
- Simply because an employee has “unpleasant choices” and is otherwise unable to return to duty, the Agency is not under obligation to allow the employee to return to work or “make work” for an employee.
- Generally, nonconsecutive absences cannot be combined to establish MSPB jurisdiction over an absence of more than 14 days.
- An employee cannot appeal a period of paid administrative leave to MSPB unless the employee was required to use sick leave, annual leave, or leave without pay during the administrative leave.
- If the employee initiated the absence in any manner, the absence is not appealable to MSPB, even if the employee was faced with “unpleasant choices.”
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