In theory federal employees are entitled to leave under the FMLA. Federal employees enjoy the same substantive rights under FMLA as non-federal employees. However, federal workers’ cannot sue the employing agency for violating FMLA. In effect, this means a federal employee can be terminated while on approved FMLA leave but have no legal recourse. Federal workers are covered by Title II of the FMLA and claims under Title II of the Family and Medical Leave Act are barred by sovereign immunity and preempted by the Civil Service Reform Act. Although Title II grants the federal employees the same substantive rights as workers covered by Title I of the FMLA, Title II does not provide for a private right of action to enforce those rights. Because Title II of the FMLA does not expressly waive the government’s sovereign immunity, all of the circuit courts addressing the issue have held that a Title II employee is precluded from bringing a private action to enforce FMLA rights. In sum, federal workers that request FMLA leave do so at their own risk.
Under the Family and Medical Leave Act of 1993 (FMLA), most Federal employees are theoretically entitled to a total of up to 12 workweeks of unpaid leave during any 12-month period for the following purposes:
- the birth of a son or daughter of the employee and the care of such son or daughter;
- the placement of a son or daughter with the employee for adoption or foster care;
- the care of spouse, son, daughter, or parent of the employee who has a serious health condition; or
- a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her positions.
In addition, an employee can use FMLA leave while awaiting approval of a request for OPM disability retirement.
If you have a serious, long term medical condition, it is probably a better idea to seek reasonable accommodation under the Rehabilitation Act. Qualified disabled persons can file an EEO complaint if the employing federal agency violates the Rehabilitation Act. If you believe you have been subjected to disability discrimination or harassment, contact Denver Employment Lawyer Gregory A. Hall to set up a consultation.
Gregory A. Hall
Denver Employment Lawyer
3570 E. 12th Avenue, Suite 200
Denver, CO 80206