Excessive Absenteeism Charge

Melville Johnson

April 8, 2020

In order to prove an excessive absenteeism charge, the agency must prove with preponderant evidence that:

The employee’s absences were for compelling reasons beyond his or her control, so that agency approval or disapproval was immaterial
The absences continued beyond a reasonable time
The employee was warned that adverse action might be initiated unless the employee became available for duty
The position needed to be filled by an employee available for duty on a regular, full-time, or part-time bases. [1]

Those who use disability discrimination as an affirmative defense to an excessive absenteeism charge have the burden of showing that they are in fact an individual with a disability pursuant to the Americans with Disabilities Act. Courts have also varied in what is considered to be beyond a reasonable time, and often make that determination on the specific facts of a particular case. Even though proof presented by an agency may vary regarding the specifics of the charge, the MSPB looks at the “essence” or overall view of the charge to determine whether it is appropriate.

The federal employee attorneys at Melville Johnson, P.C. are highly experienced in MSPB matters like excessive absenteeism, and are willing and able to assist you in your federal employment legal matters. Call or message us today to discuss your claim and see how we can assist you.

[1] See Zellors v. Dept. of Air Force, 208 Fed. Appx 895 (Fed.Cir. 2006 NP).

This blog and web site published by Melville Johnson, P.C. should not be used as a substitute for seeking competent legal advice from a licensed professional attorney. Readers of this information should not act upon any information contained on this blog or website without seeking professional counsel.

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115 West Peachtree Pl. N.W. Unit 1
Atlanta, Georgia 30313