OPM Disability Retirement: Further Reflections on Accommodations

Because the term “accommodations” is rarely understood in its technical and legal sense, there is often the danger of a Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS to “shoot one’s self in the foot” in the very use of the term — or in checking certain boxes on the application form (specifically, SF 3112A, Applicant’s Statement of Disability), and further, there is the added danger that the Agency, in completing a Supervisor’s Statement or the SF 3112D, will mis-apply and mis-state the import, significance or relevance of any actions taken in attempting to assist the Federal or Postal employee.

Indeed, in a Supervisor’s Statement (SF 3112B) there are many instances in which the Supervisor completing the form will contradict him/herself when it comes to the issue of accommodations.  Moreover, the applicant him/herself will often mis-state the issue of accommodations on SF 3112A.

The term “accommodations” has a very narrow definition, and must be used and applied to the advantage of the Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS.  Additionally, it is not out of the realm of possibilities that the Office of Personnel Management also (whether deliberately or by chance) uses the very misuse (by the Applicant) of the term to its advantage.  In all cases, the term “accommodations” must be used and referred to carefully, technically, and with full insight of all of its consequences in the use or misuse of the word.

Sincerely,

Robert R. McGill, Esquire

Federal Gov. and USPS Disability Retirement: The Pragmatic Steps

The practical aspects of every process must never be overlooked.  When an issue or procedural process appears complicated, what often happens is that people get entangled in the details of such complexity and overlook the fundamentals which support the composite of such perplexing complications.

This principle of never forgetting to take care of the essentials, is no less true in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

One can, for example, get entangled in the details of the legal interpretation of what constitutes a viable accommodation under the law, and whether or not the agency is able to offer such a proposal of accommodation.  And, indeed, agencies will often misinterpret and attempt to characterize actions on their part as constituting an accommodation (i.e., that they “allowed” the Federal or Postal employee to take sick leave, annual leave or LWOP to attend to his or her medical appointments — hardly a legally viable accommodation under the law, when all that was initiated was to allow the Federal or Postal employee to do that which he or she already had a legal right to do), and when that happens, it is up to the applicant and his/her Federal Disability Retirement attorney to point such mis-statements out to OPM.

The web of complications in the process of filing for Federal Disability Retirement benefits can be wide and perplexing; but just as a spider must prepare the threads which connect into an intricate criss-crossing of singular threads into a composite of such threads in order to effectively catch its prey, so the Federal or Postal worker wwho contemplates filing for Federal Disability Retirement benefits must carefully build his or her case beginning with the first, fundamental steps on the road to a solid foundation

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Accommodating Agency

During the course of preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the issue of “accommodations” must be addressed — if only in completing Standard Form 3112D (otherwise designated as “Agency Certification of Reassignment and Accommodation Efforts”).

It may well be that the Federal or Postal employee’s employing agency has been performing an informal “cost-benefits” analysis throughout the years, and that certain attempts at accommodating the Postal worker’s or other Federal employee’s medical conditions have been ongoing.

Thus, such attempts may include temporary suspension or unofficial elimination of certain key elements of one’s position description; allowance for teleworking for all or part of a workweek; disallowing necessary travel for onsite inspections, etc.  These and other attempts by an agency in order to retain the experience and technical expertise of a Federal or Postal employee, are all honorable and reasonable measures by the agency to keep the employee employed.

When the time comes, however, for the Federal or Postal employee to file for Federal Disability Retirement benefits because he or she has reached a “point of no return” in terms of the progressively debilitating nature of the medical condition, where all such informal accommodations are no longer helpful in allowing for continuing functionality in the workplace, the Federal or Postal entity may well have always considered such measures to meet the standard of an “accommodation”.  Such a thought process is normally wrong.  But agencies, in completing SF 3112D, will often thoughtlessly attempt to characterize such prior attempts as legally-viable accommodations.

It is up to the Federal or Postal Disability Retirement applicant to point out the error — something which OPM is more than willing to pounce upon unless corrected by the applicant or his/her attorney.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Extras, on Either Side

In performing a job, there is the basic parameter of the official “position description” for the Federal and Postal employee, which provides the foundational overview, the physical and cognitive demands of the job, and the necessary credentials and qualifications required before acceptance.

The reality of the actual workplace may somewhat modify the official establishment of one’s position, and that is to be expected:  generalities are often tailored to meet the needs of individual circumstances and situations presented by the local agency.  Beyond that, however, there is often the question of what constitutes “too much” on the one hand, and on the other side of the equation, what reduced modification of a position constitutes an accommodation under the law.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, such a duality of questions will often be encountered.  Modification by a Supervisor of a position’s duties may well allow for the Federal or Postal employee to continue to remain in a position, without compromising one’s health.  Yet, does such unofficial modification constitute a viable accommodation such that it would preclude one from being eligible for Federal Disability Retirement?  Normally, not.

On the other side of the equation, does adding responsibilities to one’s official position description result in such additional duties becoming part of the essential elements of one’s job, such that the fact that one’s medical conditions may prevent one from performing such added responsibilities impact the eligibility for Federal Disability Retirement?  Again, normally not. But such issues must be approached with intelligence and armed with the tools of knowledge of the applicable laws.

Whatever the answers, the “extras” on either side of the equation must be approached with caution, lest one finds that the earth is indeed flat, and one can fall over the edge into an abyss of administrative nightmares in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Question of Accommodations

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, certain essential issues must be addressed, including:  the medical condition itself (obviously); the impact of the medical condition upon one’s ability/inability to perform the type of positional duties required in one’s job (also quite obvious); the length of the medical condition itself (it must last for a minimum of 12 months); as well as multiple issues surrounding the question of whether the Agency can “accommodate” a medical condition.

The question of accommodations has been widely discussed by the undersigned author, especially in light of the case of Bracey v. OPM and multiple subsequent cases.  Nevertheless, despite much discussion on the subject, and attempted clarification between the legal, technical usage of the term “accommodation” and the more loosely understood concept of an agency “accommodating” an individual, there is often a surrounding confusion about the conceptual distinctions being made. This is because, perhaps inherently, the technical term of art is not self-evident.

Take, for instance, Question 7a on SF 3112A, where the form asks the question, What accommodations have you requested from your agency?  This question implies that you may have done something “wrong” if you have not specifically requested a certain type of accommodation — meaning, that you must have the knowledge to request of an agency the particular accommodating act of the agency which would allow you to perform all of the essential elements of one’s job.

Yet, this implicitly contradicts the very existence of SF 3112D, Agency Certification of Reassignment and Accommodation Efforts — which clearly places the burden of any attempted accommodation upon the agency, where — upon receipt of the disability retirement packet, or the medical evidence at any time — the agency must see if there are any jobs available or any method of accommodating the Federal or Postal employee such that he or she can perform the essential elementsof the job.

Thus, while the question (7a of SF 3112A) may have an underlying tone of a threat (as in, what have you done wrong?), it is in fact a fairly irrelevant question, and should be addressed as such.  Remember, there is a distinction to be made between the question, the answer given, and the relevance of either.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OWCP Acceptance & Federal Disability Retirement

Case acceptance by the Department of Labor, Office of Workers’ Compensation Programs (DOL/OWCP) makes it easier for the Agency to make a determination on issues of accommodation, which is one of the elements which must be established in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.  

On the one hand, when a Federal employee has been deemed to be “permanent and stationary”, the issue as to whether or not the Agency can reassign the Federal employee, or accommodate him such that the employee can continue to perform all of the essential elements of his or her job, can be easily established, in conjunction with and through the cooperation of a case manager from OWCP.  But even a modified job does not preclude an employee from filing for, and being eligible for, Federal Disability Retirement benefits under FERS or CSRS, precisely because such a modified or “light duty” job is not a permanent position, but rather an ad hoc set of duties as described in the prevailing case of Bracey v. OPM.

On the other hand, when a Federal or Postal employee has been accepted by OWCP and placed on “temporary total disability” — even if the “temporary” nature of such compensation continues on and on for many years — then it makes it easy for the Agency to simply forget about the employee and not even search to see if accommodating the individual is even possible.  

Thus, being placed on OWCP often makes it a simple administrative matter for the Agency.  No accommodations need to be searched for, and the Agency can move on, leaving the Federal or Postal employee in perpetual limbo.  

Concomitantly, however, for the Federal or Postal employee, the fact that one’s medical condition has been accepted by OWCP/DOL can be used as one element to file for Federal Disability Retirement benefits, to show that being on OWCP has some evidentiary weight that (A) the Agency is unable to accommodate the Federal or Postal worker, and (B) that there is persuasive evidence that another Federal Agency has determined that the Federal or Postal employee is disabled, and (C) that receiving temporary total disability is an indicator that one is unable to perform one or more of the essential elements of one’s job.  

Nevertheless, beyond the proof of acceptance by OWCP, the Federal or Postal employee must still affirmatively prove by a preponderance of the evidence that the medical evidence proves that one is unable to perform one or more of the essential elements of one’s job. Being on OWCP may have some minimal persuasive impact; it is still up to the Federal or Postal employee who is preparing, formulating and filing a Federal Disability Retirement application that he or she is eligible for the benefit.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Accommodation Revisited

There is nothing inherently wrong with an Agency, or the U.S. Postal Service, from providing light duty, limited duty, or “special assignments” to an injured individual, or a Federal or Postal employee who suffers from a medical condition which prevents or otherwise impedes him or her from performing all of the essential elements of one’s job.  The difficult conceptual framework that many Federal and Postal employees are unable to grasp, is that while the Federal Agency can certainly allow for such light duty assignments, such light duty assignments do not preclude one from continuing to remain eligible for Federal Disability Retirement benefits.  

The reason for the continuing eligibility is that there is a legal distinction between “accommodation” under the law, and “light duty” work.  An accommodation, in order to be a technically legal application of the term, must be some act or provision which the Agency makes, such that the individual is capable of performing all of the essential elements of one’s job.  Thus, being allowed to take a greater amount of sick leave, or take LWOP, or be allowed to perform duties which are peripheral to one’s position description — while all well and good — do not allow the Federal or Postal employee to continue to perform the essential elements of the official position description.  As such, light duty allowances do not constitute an accommodation under the law, and while it continues to allow the Federal or Postal employee to remain employed, it also does not preclude him or her from being eligible for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Don't Confuse the Standards

People who call me for advice, who are potential candidates as clients for Federal Disability Retirement benefits under FERS or CSRS, often interchangeably use terms which apply to different standards:  standards of total disability as opposed to a medical disability which impacts one’s ability to perform one or more of the essential elements of one’s job; whether a medical condition is an “accepted” disability (a concept which is often used in Social Security disability cases); whether a person can file for Federal Disability Retirement benefits even though he “hasn’t reached MMI” (“Maximum Medical Improvement”) — which is language encompassing a concept familiar to OWCP/DOL (Worker’s Comp) cases; or, on a different level, the statement that an agency has been “accommodating” an employee by allowing him/her to take sick leave, Leave Without Pay, or to “not have to travel as much” — mistakenly or loosely using the term “accommodation”, when in fact such agency actions do not constitute a legally viable accommodation, as that term is used in Federal Disability Retirement laws. 

It is the job of the attorney to correct, clarify, and otherwise explain the proper terminology and precise application of concepts in Federal Disability Retirement cases.  It is not surprising that people who are contemplating filing for Federal Disability Retirement benefits under FERS or CSRS use the various terms in error, or mix terms unknowingly — for there is alot of misinformation “out there”; it is the job of an Attorney who specializes in Federal Disability Retirement law to clarify such confusions.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Can the Agency Accommodate You?

The term “accommodations” continues to be a highly misused one.  There is the general conceptual application, as when an agency attempts to do something to help a Federal or Postal employee by “allowing” for “light duty”, or allowing one to work at a reduced schedule, or to take sick leave, annual leave, or Leave Without Pay.  But such actions (as kindhearted as they might be intended) do not constitute a legal accommodation under disability retirement rules, statutes, laws or case-law. 

To legally accommodate someone must always mean that the agency does something, provides something, or creates something of a permanent nature, such that it allows you to perform the essential elements of your job.  Temporary measures, or allowing you to take time off, does not allow you to perform the essential elements of your job — instead, it merely allows you take time away from being able to do your job.  Remember, on the other hand, that there is nothing wrong with your Agency doing these things to “help you out”.  It simply does not constitute, or rise to the level of, an “accommodation” under the law.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Further Thoughts on Reasonable Accommodation by the Agency

The problem with Agency efforts to provide an employee with reasonable accommodations is that such attempts are too often than not, neither “reasonable” nor legally viable accommodations.  Let’s remember that a legally viable “accommodation” is that act, allowance, or modification, which allows the employee to continue to perform and complete the core or essential elements of one’s position.  Further, Federal and Postal employees need to understand that there is nothing inherently wrong with an Agency providing an accommodation that is neither legally viable (for Federal disability retirement purposes) nor “reasonable”.

Let me explain.  Let’s say that an employee works for the Postal Service.  He or she gets injured, and let’s even assume that it is a valid OWCP Department of Labor claim.  At some point, because OWCP/DOL is NOT a retirement system, they will often “create” a “modified position” and make a modified, or light-duty job offer.  It could be as extreme as sitting in a corner and answering the telephone.  Now, if the individual gets the same pay, there is nothing inherently wrong with such a modified job offer.  However, at the same time, you need to remember that accepting such a modified job offer does not preclude the employee from filing for, and getting approved, an application for Federal Disability Retirement.  This is because the modified (or “light duty”) job offer is not a real, previously-vacant position, and therefore is neither “reasonable” nor truly an accommodation under federal disability retirement laws.  Nevertheless, there was nothing wrong with the Agency making up such a “modified job” and offering it to the employee.  This is true of all Agencies in the Federal Government, across the Board, from FAA Air Traffic Controllers who have lost their medical clearances, to IT Specialists who have lost their security clearances, to executive level administrators:  modified duties, and “make-up” positions, while remaining in the same position, does not mean that there is anything inherently wrong with the modified job offer.  It just means that such a modified job is neither a “reasonable” accommodation, and nor is it an “accommodation” at all — at least, not under the laws governing Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire