MSPB Ruling on FMLA Eligibility

By: Stephen A. Albanese 
NBA - Boston / Northeast Region, APWU
2 Electronics Avenue, S. 38
Danvers, MA 01923 - 978/777-8692

     I recently received a copy of a Merit Systems Protection Board (MSPB) ruling and I found it very intriguing. Let me explain why.

In order to be eligible for FMLA an employee must have 1250 work hours to his/her credit in the 12 months preceding the FMLA absence. A creditable work hour is time spent on the clock. Paid leave does not count. Those are basic rules most employees are familiar with.
     The issue in this MSPB case dealt with a situation where a preference eligible employee had been terminated and appealed that action to MSPB. Preference eligible employees, as defined in part 241 of the 311 handbook, have a right to appeal disciplinary actions in excess of 14 day suspensions to MSPB. After hearing his case on merits the hearing officer ruled the termination was improper and reinstated the worker with full back pay and benefits.
     After returning to duty the employee became ill and argued his absence should be protected as a FMLA absence. The Postal Service refused and countered that he did not meet the 1250 work hour requirement in the preceding 12 months. The USPS argued that restoring him to duty with full back pay was in fact granting him paid leave for the time out. He was not on the clock and, therefore, the reinstated work hours did not meet the definition of a work hour as required by the statute.
     The dispute went back to MSPB and they ruled the employee was eligible for FMLA. The board ruled that reinstating the employee with full back pay and benefits meant just that. They stated that in restoring his benefits all entitlements were restored including his entitlement to FMLA coverage. The ruling stated that the Back Pay Act (5 USC sec. 5596) applies to the appellant because he is a preference eligible employee. That act requires he be treated as if he had worked during the period of the improper discharge.
     When I read the order I contacted our national legal department and asked if the same principles would apply to any employee who received an arbitration award where an arbitrator restores that employee to duty with full back pay and benefits. I was advised that such a case is presently pending at Step 4 (G94C-1G-C 8101033) out of Houston, TX.
     Currently the Back Pay Act only applies to preference eligibles who are returned to duty via an MSPB appeal. The theory in the Houston case is to apply those principles to any employee who is disciplined and then has that action overturned by an arbitrator. If the arbitrator orders restoration of back pay and benefits should the FMLA entitlements be restored as well? This is an important question and I wish the national well in its attempt to win that argument . If this case out of Houston is successful then any employee who has their discipline overturned by an arbitrator with full back pay and benefits will have his/her FMLA work hour credits restored just as if they had worked during the period of wrongful discipline. This will not be an easy battle but then again the ones worth winning never are.