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

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 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

Medical Retirement Benefits for US Government Employees: The Agency’s Attempt

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the issue of “accommodations” will necessarily surface, if only because the Agency must complete SF 3112D — the Form which is entitled, “Agency Certification of Reassignment and Accommodation Efforts” (which bureaucrat came up with that title?).

Agencies will often choose the wrong box to check because they will either misread the choices or misunderstand what the statements mean.  For instance, in the third choice of Question 4, it states, “Yes, describe below the accommodation efforts made, attach supporting documentation and provide narrative analysis of any unsuccessful accommodation efforts.”  The problem with the choice itself is that the entire concept of “accommodations” has been clarified, modified, and thoroughly discussed in cases which have been brought before the U.S. Merit Systems Protection Board and the Court of Appeals for the Federal Circuit, and such court opinions have been issued subsequent to the original meaning of the term when the Standard Form was first issued.

But when the Agency completes the form, they will often answer the question in terms of “allowing for liberal use of sick leave” or “letting the employee refrain from doing X, Y or Z”,  etc.  But allowing for temporary, light duty work does not constitute a “legal accommodation“, and thus does not go to the requested information.  In fact, the loosely-used term of “accommodation” is actually no accommodation at all.

What to do about it when it happens?  One must be discreet in how to approach it.  For most cases, the agency’s lack of understanding will have no impact at all, and it should not be responded to.  In other instances…

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

Federal and Postal Disability Retirement: Waiting upon the Office of Personnel Management

A Federal or Postal worker who is filing for Federal Disability Retirement benefits under FERS or CSRS must understand that the waiting portion of the entire process is probably the most difficult time, precisely because it is a time of inactivity, where one’s future plans are placed on hold because of the uncertainty of the decision.  

Everyone, of course, believes that his or her Federal Disability Retirement application has merit. Otherwise, a Federal Disability Retirement application, whether under FERS or CSRS, should never have been prepared, formulated, finalized and filed — but for the strong belief that one’s medical conditions prevent one from performing one or more of the essential elements of one’s job.  

Every Federal or Postal employee whom I represent believes that his or her case is a “slam dunk” case, and it is the job of an OPM Disability Attorney to present it as such, but within the limitations of what the doctor & other supporting documentation will provide.  Once a Federal Disability Retirement application has been filed with the Office of Personnel Management, then the destiny of one’s future plans is somewhat placed in the hands of the OPM benefits clerk.  

Activity often gives the appearance of progress, and inactivity presents a frustrating sense of powerlessness.  But waiting is part of the process.  As such, it is best to make plans, prepare for one’s future in other ways, and allow the Office of Personnel Management to review one’s case properly and thoroughly.

Sincerely,

Robert R. McGill, Esquire