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Ask the Lawyer – Neil A.G. McPhie

Federal Employment Law

By Neil A.G. McPhie

Neil McPhie - Federal Employment LawyerQ: My daughter is ill and I need to be home to care for her. Can an agency deny a request for unpaid leave to care for a family member?

A: While the Family and Medical Leave Act (FMLA) does afford qualified federal employees the ability take up to 12 workweeks of unpaid leave per 12-month period to care for a sick spouse, parent or child, a dependent must have more than a case of the sniffles for this law to kick in.

For a federal employee to qualify for FMLA leave for dependent care purposes, a spouse, son, daughter or parent must suffer from a “serious health condition,” such as a physical or mental condition or an impairment, illness, or injury. Further, the dependent must be receiving inpatient care at a hospital or other medical care facility or be receiving a health care provider‟s continuous care. The employee must also have worked at the agency for at least 1,250 hours the previous year.

In cases when parents know they will have to take off from work to care for a child, they should provide at least 30 days‟ notice of their intention to go on dependent care leave. The agency can demand medical certification detailing the need for care and an estimate of how long such care will be necessary. However, leave can neither be denied nor delayed in the event an unforeseen emergency in which the employee cannot provide such advanced prior notice, according to the FMLA implementation regulations established by the Office of Personnel Management (OPM).

Parents must be aware that just any doctor‟s note will save them from a charge of absent without leave (AWOL). Under the OPM‟s FMLA implementation regulations, if an agency is skeptical of a dependent‟s medical documentation provided by an employee, it can demand certifications from one or two other health care providers. Employees who cannot provide medical certification before going on leave could be granted “provisional leave pending final written medical certification.” However, any failure to provide this certification after going on leave will likely result in an AWOL charge.

Parents who have been subjected to an adverse action because of their attempts to care for a sick child should consult with an attorney to explore whether their FMLA rights were violated and help them file an MSPB appeal.

Neil McPhie is the Virginia Managing Partner for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at To schedule a meeting with an attorney call 202-787-1900.


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