OPM Disability Retirement: The Complication of Accommodations

The problem with most people is that they come at a conversation with a selective focus — and listen for that which they want to hear, and filter all other information which fails to fit the paradigm of their predetermined perspective.

In preparing, formulating and filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, the question of accommodations via Standard Form 3112D comes to the fore — often because of the selective focus of issues on the part of OPM.

The fact that an agency may have engaged in work-place modifications, or allowed for temporary alleviation of certain elements of one’s job description; or even provided a state-of-the-art ergonomic chair with 3-speed controls with horizontal landing mechanisms — does not mean that the agency was able to, or did, accommodate the Federal or Postal employee under the legal meaning of that which constitutes a viable “accommodation” .

For, that which the agency does must allow for the Federal employee to perform the essential elements of his or her job, and any such attempted “accommodation” which does not meet that standard, is technically not an accommodation at all.  It is merely an artifice and a cosmetic make-over in an effort by the agency which allows for the agency to declare that they have “accommodated” the individual Federal or Postal employee.

Rarely does the question on SF 3112D get accurately responded to; for, the concept of “attempted” accommodations is precisely the point — if it was attempted, and did not work, then the agency has an obligation to concede and describe that point; but from the Agency’s myopic perspective, any “attempt” constitutes an accommodation, and the U.S. Office of Personnel Management will embrace such an assertion with open arms.

What to do about it?  Always focus upon the central point of a Federal Disability Retirement application — it is a medical retirement.  Thus, the doctor’s opinion is sacrosanct, and should be repetitively emphasized.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Medical Retirement: Reassignment Considerations

In considering filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the issue of possible reassignment will arise — normally as a rather secondary and unimportant facet of the process — as an obligatory agency action.

SF 3112D is a form which the agency must complete.  The form essentially affirms that the agency attempted either of 2 things:  tried to “accommodate” the Federal or Postal employee, or tried to find a suitable “reassignment” to another existing, available position.

As to the latter, case-law has made it clear that in order for an offer of reassignment to preclude the Federal or Postal employee from continuing with one’s Federal Disability Retirement application, such light or limited duty offer must be at the same pay or grade of one’s current position (there are some complicating details connected with the enunciated standard, but for present purposes, this general rule will suffice).

Sometimes, the Agency or the U.S. Postal Service will find a lower-paying position, and offer it, and the employee will gladly accept it because it allows for continued employment.  But one must understand that, if down the road, the Federal or Postal employee finds that he or she is unable to perform one or more of the essential elements of that “lower” position, then it is from that “lower” (and often of lesser responsibilities) position that one will be filing for Federal Disability Retirement.

Just some thoughts to ponder; for, as a general rule, the greater the responsibilities of a position, the lesser the standard of meeting the threshold for a Federal Disability Retirement; and, conversely, the lesser the responsibilities of a position, the higher requirement to prove one’s case in a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Non-issue of Accommodations

As has been previously written about on multiple occasions, the Federal or Postal employee who is contemplating filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, will encounter and confront the issue of “accommodations” in the course of preparing, formulating and filing for Federal Disability Retirement benefits.

For most Federal and Postal employees, the issue itself is a “non-issue”, in that the agency will neither be able to either reassign the employee to another position at the same pay or grade, nor provide for an accommodation which is legally sufficient such that the Federal or Postal employee will be able to continue to perform all of the essential elements of one’s positional job requirements.

Further, most Federal or Postal workers who file for Federal Disability Retirement benefits from OPM have what the undersigned attorney terms as a “non-accommodatable” medical condition — i.e., the particular type of medical condition is simply inconsistent with the individual type of job which the Federal or Postal employee is slotted in.  Thus, it is really a non-issue. This non-issue is, for the most part, taken care of and disposed of by the completion of a single form — SF 3112D, which is completed by the Human Resources Department of the agency, or at the H.R. Shared Services office in Greensboro, N.C. for the Postal employee.

While an important and complex issue, the case-law has effectively de-fanged any concerns about accommodations, such that the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits need not be overly concerned with such a non-issue.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Accommodation Issue, Redux

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal or Postal employee must satisfy certain requirements (one often views such legal requirements and criteria as “obstacles” as opposed to procedural steps to be taken and satisfied) in order to have what is deemed by the Office of Personnel Management as a “complete” package which can be reviewed and determined for approval or denial.

As part of the requirement, one must have an SF 3112D completed — the Agency’s “Certification of Reassignment and Accommodation” form.  This form is the one which satisfies the question, “Don’t I have to ask for an accommodation from the Agency?”  The answer to the question is satisfied in the very act of the Agency completing the SF 3112D, and one need not separately or independently have asked the agency the question.  It is, as such, part of the administrative process and procedure which the agency must engage in and satisfy.

There is often a mistaken idea that the Federal or Postal employee must make a separate and formal request of the Agency.  But it is in the very act of completing the form — the SF 3112D — that the tripartite issue is resolved:  In the completion of the form, the (A) question of accommodation is asked, (B) the issue of accommodation is answered, and (C) the requirement that the agency address the issue of accommodation is satisfied.

No separate or independent effort, either by the Agency or the Federal or Postal employee, need be expended, for purposes of 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 Trickiness Concerning Accommodations

The issue of “Accommodations” can be a rather tricky one.  Over the years, the term has expanded and been refined by various legal precedents, and the technical, term of art now carries some meanings which, if not understood properly, can entrap Federal and Postal employees into making wrong decisions while in the process of preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS.  

In simplistic terms, to be properly accommodated by an Agency, the Federal or Postal worker must be provided with an accommodating “X”, such that he or she can continue to perform all of the essential elements of one’s job.  Further, temporarily modifying or suspending certain elements of a position description, for purposes of allowing for the Federal or Postal Worker to continue working, does not constitute an accommodation under the law.  

This makes sense, if one stops to think about it, and for the following reason:  such an arbitrary modification of work duties by a Supervisor or Manager, can just as arbitrarily be taken away.  As such, temporary “accommodating” actions — while commendable and allowable in order to let the Federal or Postal worker continue to work — does not preclude the Federal or Postal worker from proceeding with his or her Federal Disability Retirement application.  

Additionally, remember that an Agency’s effort for “Reassignment” is part of the Standard Form 3112D (Thus, the Form is entitled, “Agency Certification of Reassignment and Accommodation Efforts”), and comprises part of the Agency’s attempt to “accommodate” the Federal or Postal employee.  The issue of “reassignment” is a separate, but related one, and that issue is often influenced by the dependent clause which should not be overlooked in a Federal Disability Retirement application:  that a person can no longer perform one or more of the essential elements of a particular job, or any similar job. 

By having a working knowledge of the issues surrounding Federal Disability Retirement laws, even in a rudimentary state of knowledge, one acquires a better chance of success.  Approval is a long and arduous process. Knowing the lawand its impact is part of that process.

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 Employee Medical Retirement: Too Much Information

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, brevity and succinctness should be the guiding rule.  Often, over-explaining and overstating a particular issue, while intending to be helpful and fully descriptive, can result in greater confusion and muddling of the issues.

This is found not only in the Applicant’s Statement of Disability, but also in an Agency’s responsive completion of forms — both the Supervisor’s Statement as well as the Agency’s efforts for Reassignment and Accommodation.  Previously, much has been written concerning (for example) the Agency’s attempt to explain how the Federal or Postal employee was “accommodated” in various ways.

Such explanations, while legally untenable precisely because the efforts engaged in did not in fact constitute an accommodation as the term is defined in Federal Disability Retirement laws, nevertheless confuse the issue with the Office of Personnel Management because (A) they often provide an appearance of having accommodated the Federal or Postal employee and (B) the Claims Representative at the Office of Personnel Management himself/herself neither understands the laws governing accommodation, nor applies it properly.

The same is often true in a long narrative of the Applicant’s Statement of Disability — where causation, harassment, the history of the medical condition, the problems at the agency, the history of how one’s work could not be performed, collateral legal forums filed with, etc. are all extensively discussed.

Remember that an answer to a question should always be guided by the question itself.  Don’t create your own question and answer the question you composed. Rather, re-read the question, and answer only the question asked.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Continuing Confusions

In Federal Disability Retirement law under FERS & CSRS, the issue concerning accommodations can continue to remain a rather confusing area of law.  This is especially true when an Agency allows for an individual, either in the Postal Service (which is becoming rarer because of the prevailing winds of the National Reassessment Program) or in the non-Postal, Federal sector, to remain in a position and perform much of the lighter duties of the job, and to allow for one or more of the essential duties of the job to be delegated to others, or not be performed at all.  Now, such a situation can continue on for years, and there is nothing inherently wrong with such an arrangement (aside from the fact that the other Federal workers to whom such work is “delegated” may grumble and complain about fairness or, more likely, that some of the work is never completed), especially if the work which the injured individual performs is valuable to the Agency — even in such a “light duty” status.  

What must be kept in mind, however, regarding the relevance and significance to filing a Federal Disability Retirement application under FERS or CSRS, is that throughout the entire time-period of being on such light duty, the Federal or Postal worker could have, at any time, filed for Federal Disability Retirement benefits and should have been approved.  This is because such temporary “light duty” arrangements never constituted an “accommodation” under the law, and the Federal or Postal worker was eligible for Federal Disability Retirement benefits regardless of remaining in the “light duty” job.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Those Workplace Issues

In preparing a Federal or Postal Disability Retirement application under FERS or CSRS, there are often multiple collateral issues which arise:  Harassment issues; Unequal Treatment; EEOC issues; Hostile Workplace issues; Discrimination issues; and multiple other issues which may or may not be viable complaints.  Such complaints have their proper place, in the proper forum, within the proper context.  As I have written multiple times previously on this issue — these employment issues should be avoided in the context of preparing for and filing a Federal Disability Retirement application.  

Many of these employment complaints may be viable ones to pursue; some may be pursued concurrently while seeking Federal Disability Retirement benefits under FERS or CSRS, and will not ultimately defeat or impact such an application (remember that in law, not only can an attorney speak out of three or four sides of his mouth; one is also allowed to make contradictory legal arguments at the same time).  

The point is that such collateral arguments and issues should not be a part of the application itself.  It may be fine to pursue such workplace issues in a separate and different forum — just not in the process of a Federal Disability Retirement application.  If the issue is brought up, the Office of Personnel Management may well use it against you, stating, “Your medical conditions seem to occur as a result of your allegation of the actions of your Supervisor. As such, you suffer merely from situational disability.”  Case denied.  

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Determining Peripheral Issues

It is important in preparing a Federal Disability Retirement application to make the distinction between essential, substantive issues which will need to be addressed, and those issues which should be deemed “peripheral”.

The substantive issues should be those which go to the “heart” of your case (i.e., the medical disabilities; the impact upon the work; sometimes, the issues concerning medication regimens and treatment modalities, etc.).  The peripheral issues are those which will not only detract from the essential issues, but also some which may, if focused upon too prominently, derail a Federal Disability Retirement application.

Further, a potential applicant for a Federal Disability Retirement must have the wisdom and discernment to sometimes leave an issue alone.  Perhaps an issue is brought up by a Supervisor in a Supervisor’s Statement, or in the SF 3112D concerning an accommodation issue; or perhaps it is brought up on an SF 50.  In any event, remember the general dictum that if a person protests an issue too vehemently, it may bring the attention and focus of the Office of Personnel Management upon an issue which otherwise may have been ignored.

Such approaches in determining peripheral issues from substantive issues are made in the course of filing for Federal Disability Retirement benefits, based upon experience, wisdom, and discernment.

Sincerely,

Robert R. McGill, Esquire