OPM Disability Retirement: The Reality of Accommodations

Medical conditions test the value of a worker; for, while people may engage in theoretical discussions of “cost-benefits analysis“, where the cost of X is compared and contrasted to the benefit of Y, such that the hypothetical analysis results in a business decision based upon pure economic need — the reality of such an approach rarely gets a true test beyond such dinner table discussions.  But when a Federal or Postal Worker begins to suffer from a medical condition, such that the medical condition visibly impacts one or more of the essential elements of one’s job, then the economic paradigm of a cost-benefits analysis is applied, whether overtly or in a more subtle, inconspicuous manner.

The agency may recognize the need to allow for temporary suspension of certain positional duties — travel may be taken up by some other employee; heavy lifting may need an additional helper; telecommuting may be a viable option.  The cost of such temporary measures is felt in the work left undone; the benefit is accrued by the experience, wisdom, and knowledge of the disabled retained worker.  In rarer occasions, a formal request for an accommodation may be submitted by the Federal or Postal Worker, and an administrative process of attempting to provide a legally viable accommodation may ensue; but that is a rare process, indeed.

The reality of accommodations in the Federal sector is one of practical need versus the trouble such attempts bring; for the Federal or Postal Worker, whether under FERS or CSRS, the true option left is to file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management.  Such an option results from an agency being tested — and loyalties revealed.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Legally Sufficient Accommodation

Whether the Federal Agency or the U.S. Postal Service has offered a legally-viable accommodation is determined by the criteria of an offer made which is either at the same pay or grade as the position one currently occupies; but, moreover, as the Bracey case and subsequent cases which elaborate upon the issue have made clear, it cannot be a position which is merely “made up” or temporary by nature, or one in which the current Supervisor merely whispers in one’s ear and says, “Just don’t do X, Y and Z essential elements of the job.”

The reasoning behind the view that such a temporary, modified “position” does not constitute an “accommodation” under the law — and therefore would not prevent eligibility for Federal Disability Retirement benefits — is easily justified by the age-old adage that, where one lives by the sword, one dies by the sword; meaning, thereby, that if Supervisor X can simply suspend certain essential elements of a job, a future Supervisor Y can just as easily reinstate the requirements of performing those previously-unattended elements, and require that they be performed.

That being said, there is nevertheless nothing wrong with an Agency allowing for a Federal or Postal worker to work at a position and lessen the requirements of the job.  For some, it may be that such a modified position is acceptable, especially in light of receiving a regular paycheck.

The issue of “accommodations” should not be confused with the eligibility requirements of being able to file for, and be approved with, Federal Disability Retirement benefits from the U.S. Office of Personnel Management.  There is the issue of legally-sufficient accommodation for purposes of preparing, formulating and filing for Federal Disability Retirement benefitsfrom the U.S. Office of Personnel Management; then, there is the commonplace parlance of being informally “accommodated” if one wants to continue to work; the two are not contradictory.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Clarifying Accommodations

There is a conceptual and legal distinction to be made between an Agency’s “accommodations”, as used in a loose, non-technical manner, and being “accommodated” in accordance with the laws, regulations and statutes governing Federal Disability Retirement under FERS or CSRS, and as intended in usage on Standard Form 3112D, Agency Certification of Reassignment and Accommodation Efforts for the Office of Personnel Management.  

Often, when a Federal or Postal employee becomes injured (whether on the job or while on vacation is an irrelevancy for purposes of Federal Disability Retirement eligibility), the Agency will attempt to lessen the workload, allow the Federal or Postal employee to work in a modified manner, allow for “light duty” assignments, or even temporarily suspend certain essential elements of one’s job (travel, heavy lifting, required overtime, e.g., etc.), and such efforts on the part of the Agency are commendable, allowable, and perfectly within the acceptable structures of law.  

Such efforts by the Agency are often referred to loosely as an attempt to “accommodate” the Federal or Postal employee’s medical conditions, and indeed, it is a correct (but non-legal and non-technical) use of the term.  It is not, in terms of legal sufficiency, an “accommodation” to the extent that the narrow definition of what it means to be “accommodated” under the law is that an agency will provide an accommodation such that the Federal or Postal employee, with the accommodation, will be able to perform all of the essential elements of what the position requires.  

Lessening the duties temporarily, or suspending certain essential elements of the job for a prescribed period of time, does not allow for the Federal or Postal employee to perform those essential elements of the job, and therefore is not technically an “accommodation”.  That is why most accommodations are not accommodations at all, and as such, those accommodating actions by the agency do not preclude a Federal or Postal employee to file for, and be eligible for, Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Agency Accommodation Reiterated

In most cases, the agency is unable to accommodate the individual.  By “accommodation” is often meant lessening the workload, or temporarily allowing for the medical conditions resulting in certain limitations and restrictions to be taken into account — for purposes of travel, for sustained periods of sitting, for physical aspects of the job, etc.  But such temporary light-duty allowances do not constitute a legally viable “accommodation”.  But one must always remember that, while such measures by the Agency do not constitute an accommodation under the law, and as such do not preclude a Federal or Postal employee from filing for and being eligible for Federal Disability Retirement benefits, nevertheless, there is nothing wrong with the Agency providing for such temporary light duty modifications of the job.  In fact, it reflects well upon the agency that it would go to such extents, even if for only a temporary period of time, in hopes that the Federal or Postal employee will be able to sufficiently recover to return to “full duty”.  

Remember that there are at least two senses of the term “accommodation” — in the layman’s sense of some temporary measures to allow the employee to continue to work; then, in the legal sense of a viable “accommodation” under the law.  Don’t confuse one with the other.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Preempting OPM’s Arguments

It is important at all stages of a Federal Disability Retirement application for FERS & CSRS employees to predict, anticipate, and preempt the arguments which the Office of Personnel Management may make, will make, and can be expected to make.  Obviously, the three main areas of such concern are:  Sufficiency of medical documentation; Agency efforts for accommodation and reassignment; the impact and interconnection between one’s medical condition(s) and the positional duties of one’s job. 

However, there are multiple other areas, and it is the job of an applicant filing for Federal Disability Retirement benefits, or his/her attorney, to anticipate the areas of OPM’s concerns, and to address them both factually and legally — the latter, by pointing out statutory authorities and case-law holdings directly or implicitly touching upon those very areas of concern.  Further, one should never be fooled if, in an initial denial of an OPM Disability Retirement application, the substance of a denial is fairly short or if it is detailed and lengthy; the content of a denial letter should not determine the extent of a response by an applicant at the Reconsideration Stage.  Instead, whether short, of “middle length”, or extremely detailed, a response should anticipate all areas of concern, and the applicant who is attempting to secure an approval for his or her Federal Disability Retirement benefits should always preempt any potential areas for a further denial.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Agencies Rarely Accommodate

For whatever reasons, Federal Agencies rarely accommodate an individual who has a medical condition which impacts one or more of the essential elements of one’s job.  Whether the Supervisor is too busy to craft a viable accommodation plan, or whether the Agency is simply following the standard thoughtless response of the Federal Sector in general, the truth is that Agencies rarely, if ever, provide a truly viable, legally defined accommodation.  I receive calls every day from Federal and Postal employees who will state that the Agency is currently “accommodating” him/her; upon closer questioning, however, it always turns out that the term “accommodation” is being used in a non-artful, general sense, as in:  The Agency is letting me take LWOP; the agency is letting me take sick leave; the agency is letting me not travel too much; the agency is letting me…  What the agency is doing, whatever it is, is to temporarily keep you around until they decide your services are no longer needed.  That may be just around the corner, or you may be forgotten for some considerable amount of time.  Regardless, don’t be fooled; agencies rarely accommodate, and it is most likely the case that whatever “accommodations” the Federal or Postal employee believes that the Agency is providing, it does not fall under the legal definition of the term.

Sincerely,

Robert R. McGill, Esquire