MSPB and EEOC Question: Can the Agency make a Federal employee take leave indefinitely?
If an Agency places an employee on indefinite enforced leave, the MSPB may have jurisdiction to review this action.
Typically, an Agency will place an employee on enforced leave, pending the results of a voluntary or involuntary application for medical/disability retirement, or in other scenarios where the Agency has questions (legitimate or not) about an employee’s medical inability to perform the essential functions of the job.
An Agency may place an employee on enforced leave pending inquiry to see whether he has become medially able to work. However, once an agency learns that the employee is fit for duty, the employee must be restored immediately to active duty status.
Enforced leave might be appropriate when the Agency believes that the employee’s retention on active duty could result in damage to federal property, or be detrimental to governmental interests, or be injurious to the employee, his fellow workers, or the public.
However, indefinite enforced leave is almost always tantamount to depriving the worker of a job, when there is no review other than the Agency’s own arbitrary choice to change its mind that the employee can perform his job. This is even more true when the employee is ready, willing and able to work.
Consult an attorney familiar with the law and procedure of the MSPB and EEOC if you have been required to take a Fitness for Duty exam, or if you have been directed to take annual or sick leave or LWOP for an indefinite period of time.
