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

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

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 and Postal Disability Retirement: The Danger of Assuming Terms

Assuming knowledge is generally a dangerous endeavor to begin with; in a legal forum, assuming the meaning of a term can have dire consequences.  “Accommodation”, of course, is a particular term in the field of Federal Disability Retirement law which has a specific, narrow definition.  

Thus, for instance, on SF 3112A, there is a “loaded” question where the applicant for Federal Disability Retirement benefits is asked to choose the various options of one’s current status, and one of the choices provided is, “In pay status, and working with accommodation“.  Such a status is rarely the case, and in all likelihood, does not properly, technically or otherwise apply to anyone who is preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS.

Indeed, if that box is checked, the Office of Personnel Management would have every right to deny a Federal Disability Retirement application on that basis alone, precisely because (A) A Federal or Postal employee who has been accommodated, according to that term of art, is therefore assumed to be able to perform all of the essential elements of his or her job in accordance with the terms of the accommodated position, and (B) Since the Federal or Postal employee who has filed for Federal Disability Retirement benefits has been accommodated and can perform all of the essential elements of the positional duties, therefore it implicitly acknowledges that the medical condition complained of no longer prevents one from performing one or more of the essential elements of one’s job.  

Terms can have various conceptual meanings depending upon context and circumstances; particular terms may have very narrow definitions; in the field of law, terms of art must be interpreted in the greater context of statutes, regulations, and case-law expansion of meanings and import.  As the commercials often admonish:  don’t try this on your own; leave it to the professionals.

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