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

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: Psychiatric Conditions and Accommodations

In preparing, formulating and filing a successful Federal Disability Retirement application with the Office of Personnel Management, under FERS or CSRS, the issue of accommodations will come up.  The Agency from which one retires under a Medical Disability Retirement will have to ultimately fill out Standard Form 3112D —  Agency Certification of Reassignment and Accommodation Efforts — which will constitute and satisfy the Agency’s attempts at “accommodating” a Federal or Postal worker in his or her current position, taking into account his or her medical conditions. 

Unfortunately, most medical conditions are deemed to be “non-accommodatable” (if such a term exists in the English Language), and this is logically as well as legally true because with or without the accommodations, one must be able to perform all of the essential elements of one’s positional description.  Minor adjustments to the workplace, or even to the work assignments, may be able to allow for the Federal or Postal worker to continue to work in a Federal or Postal position for some time, but that Federal or Postal worker must be able to perform all of the essential elements of the job, as described in the position description.   An Agency may temporarily suspend certain elements of the core functions of the job, but such temporary suspension does not constitute an accommodation under the law. 

For psychiatric medical conditions, it is rare that an Agency will be able to accommodate such a medical condition, precisely because of the inherent nature of the medical condition — that which impacts upon one’s focus, attention, concentration, and ability to organize and perform executive functions in a coherent and systematic manner.  As such, the issue of accommodation, while one which may have to be addressed in preparing, formulating and filing a Federal Disability Retirement application, is normally an irrelevant, non-issue.

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

OPM Disability Retirement: A Different Language Game

Wittgenstein was a philosopher who is well-known for his discussion about different “language games”.  In preparing a Federal Disability Retirement application under FERS or CSRS, it is well to understand that, indeed, there is a different type of language game when formulating and submitting a Federal Disability Retirement application, distinct from preparing a Social Security Disability application, or an OWCP case, or a VA disability case.  

Often, when people first contact me for an initial consultation for filing of a Federal Disability Retirement application, he or she will still be “stuck” in the language game of some other process, and will continue to use inapplicable terms such as, “I have a rating of..”; “it was caused on the job”; “I haven’t yet reached MMI”; and other such similar terms, phrases and concepts which, in a different process, a different context — a different language game — may be perfectly meaningful, but in the preparation and formulation of a Federal Disability Retirement application, are either partially or wholly inapplicable, and sometime distracting from the essence of what is needed in approaching a Federal Disability Retirement application.  Remember, not all processes are the same, and a switch in conceptual paradigms, and the use of a proper language game, is necessary in order to be successful in preparing and filing a Federal Disability Retirement application under FERS or CSRS.

Sincerely, Robert R. McGill, Esquire