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While there can be many charges relating to leave use or absence from the workplace, absence without leave, or AWOL, is one of the most frequently used. In some instances, agencies charge employees who are late to work with AWOL, while in other cases AWOL charges may be related to an extended absence relating to a medical condition, for example if an employee exhausts their leave, including FMLA leave, but is still unable to return to work. To successfully prove an AWOL charge, an agency must show by a preponderance of the evidence that the employee was absent, and that their absence was not authorized or that their request for leave was properly denied. Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 6 (2009)see Wesley v. U.S. Postal Service, 94 M.S.P.R. 277, ¶ 14 (2003). More precisely, to prove an AWOL charge, an agency must demonstrate that the employee was absent without authorization and, if the employee requested leave, that the request was properly denied. The Board has held that any charge of AWOL that has been sustained is inherently connected to the “efficiency of the service” described under Chapter 75.

Often AWOL charges used to take adverse actions include multiple specifications, as one instance of AWOL may be insufficient to justify an adverse action considering the Douglas factors. For example, the Board may find that two hours of AWOL on one day does not justify removing a long standing employee with excellent performance whereas 20 specifications of AWOL may warrant an adverse action. The Board will sustain an AWOL charge even if the agency proves some, but not all of the charged period, and may, depending on the severity of the offense and other factors, uphold an adverse action. A few aggravating factors that can be relevant to a charge of AWOL included a history of absences and tardiness/unreliable attendance by the employee and failure to correct the behavior when warned. Some mitigating factors in favor of the employee include short and infrequent AWOL, extenuating medical circumstances, and even years of service. In Mann v. VA, 27 MSPR 265, 267-268 (1985), the Board mitigated the removal to a 60 day suspension where an employee was AWOL two and a half months but was 67 years old with various physical problem and had 37 years of service.

If you have been charged with AWOL, please contact us today.


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