CSRS & FERS Medical Disability Retirement: The Agency, FMLA and LWOP

Because filing for Federal Disability Retirement is a process which may take 6 – 8 months, and sometimes longer, there is always the question of what the Agency will do during this time.  Of course, a Federal or Postal employee will often continue to work for as long as possible, and for as many days during each enduring week as possible, in order to survive economically during the process of preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.  The medical condition itself, however, will often dictate the feasibility of attempting to continue to work. 

During this period, a Federal or Postal employee may have limited options — especially when Sick Leave and Annual Leave have been exhausted.  Protection by filing under the Family and Medical Leave Act (FMLA) will accord temporary protection and a buffer against a demanding agency.  A further request to be placed on LWOP beyond the 12 weeks which FMLA will allow for, will often be granted at the discretion of the Agency. 

If an agency places one in AWOL status, such an action by the Agency should be countered with documentation from one’s doctor which justifies the continued absence of the Federal or Postal employee.  Unfortunately, there is often no clear answer to the question, “What if my agency fails to cooperate while I am filing for Federal Disability Retirement?”  There are only responsive steps to take in order to protect the ultimate goal — that of obtaining an approval from the Office of Personnel Management.  

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Taking a Trickle of Leave and Back Pay Issues

When a Federal or Postal employee files for, and is approved for, Federal Disability Retirement benefits under FERS or CSRS, the disability retirement annuity which one receives extends back to the “last day of pay” of a Federal or Postal employee.  It matters not what “kind” of pay; the Office of Personnel Management merely receives the date of the Federal or Postal employee’s last day of pay from the Agency, then gives back-pay back to that date which the Agency determines that he or she was last paid.

Thus, if a person was on LWOP for a six-month period while awaiting for a decision from OPM on his or her Federal Disability Retirement application, then decided to use up the last couple of hours of Annual or Sick Leave and receive a nominal amount — in that scenario, the back pay would extend only to the payment received for the Annual or Sick Leave, and the Federal or Postal employee would lose any back-pay for the six-month period of LWOP.

With this in mind, it is important to plan — to either remain on LWOP during the entire period of waiting for a decision from OPM, or if one continues to work or to receive payments for Sick or Annual Leave, to make it worth one’s while (i.e., to continue to receive a payment rate equal to what the rate of pay for back-pay would be, which is 60% of the average of one’s highest three consecutive years of salary the first year, then 40% every year thereafter).  Just some thoughts.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Revisiting the Concept of “Accommodations”

Accommodation” is a legal term of art.  At least, in preparing a Federal Disability Retirement application under FERS or CSRS, it is a specific term, with specific definitions, with underlying meanings that need to be fully understood in preparing a viable and successful disability retirement application.  In very loose, non-legal terms, there is never anything wrong with an Agency Supervisor “accommodating” a good and loyal Federal employee — by allowing the person to take LWOP; of instituting liberal leave policies; of lessening the workload; of allowing for temporary light duties; of minimizing travel, restricting certain physical requirements, or reassigning certain complex projects to other employees of the Agency.  Every good supervisor does this; and, indeed, sometimes everything works out for the best, and the temporary measures undertaken by the supervisor may allow for the employee to sufficiently recover and later reaffirm all of the essential elements of the position.  But the remaining question is:  Were those measures considered an “accommodation“?  The answer is:  No.  Why not?  Because such measures do not constitute and meet the definition of “accommodation” under the laws governing Federal Disability Retirement.  They may be “good” for the Agency, but they do not preclude one from filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Right Time

For each Federal and Postal employee, there is a “right” time to file for Federal Disability Retirement benefits under FERS & CSRS.  By “right time”, I do not mean as to the proper timing in the actual filing of a Federal Disability Retirement case — i.e., whether it should be before or after separation from service, whether at the end of the year, the beginning of the year, etc.  No, by “right” time, I refer to the time when a Federal or Postal employee — that person who has put in all of those many years of loyal service, managed through pain, discomfort, overwhelming stresses, anxieties, fears, chronic and intractable pain, etc. — comes to the conclusion that he or she cannot continue in this mode of existence anymore.  Whether or not a Federal Disability Retirement case is filed with an agency or at the Office of Personnel Management in one month as opposed to another, is ultimately not of great importance; whether a person who is suffering from a medical condition for months, or years, and has been adept at hiding the daily pain and suffering — whether that person has come to a decision that it is now the “right time” to file for disability retirement, makes all the difference.  Each person must find that right time.  “How” and “when” are the two questions which must be answered, and only the Federal or Postal employee who is contemplating filing for Federal Disability Retirement benefits under FERS or CSRS can answer such questions.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Indicators

If your weekends are spent for the purpose of recuperating just so that you can have the energy, strength, mental acuity, and sustained focus and attention to go back to work on Monday, then it is an indicator that you may need to file for Federal Disability Retirement benefits under FERS or CSRS; if, after each day of work, you are so profoundly fatigued that you end up spending each evening just resting, unable to have any significant recreational enjoyment or time for relaxation, time with family, etc., then it is an indicator that you may need to file for Federal Disability Retirement benefits under FERS or CSRS; if you must take sick leave, LWOP or annual leave every few days, or after a week of work, because you need the time off to recuperate, then that is a further indicator.  Ultimately, each individual must make his or her decision as to the timing and whether one has reached a critical point where filing for Federal Disability Retirement benefits under FERS or CSRS is necessary.  Different reasons for different people; different factors at different times of one’s life. 

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: It Is a Medical Issue

If a Federal or Postal Employee is still on the rolls of the Agency, or if you have not been separated from service for more than 31 days, then the disability retirement application must be routed through your agency before being forwarded to the Office of Personnel Management for processing and review.  If you have been separated from Federal Service — meaning, you have actually been taken off of the rolls of your agency (this does include being on sick leave, or on annual leave, or on leave without pay) — for 31 days or more (but not for more than 1 year, in which case you have lost your right and ability to file for Federal Disability Retirement benefits, because you have allowed the 1-year statute of limitations to pass by), then you must file your case directly with the Office of Personnel Management in Boyers, PA.  Whether routed through your agency or directly to the Office of Personnel Management, remember that a Federal Disability Retirement application is ultimately a medical issue — not a supervisor’s issue, not an agency issue; it is not determined by your agency; your eligibility is not determined by your supervisor.  It is, essentially, and at its very core, an issue between you, your doctor, and your inability to perform the essential elements of your Federal or Postal job.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: The Decision

It is always a hard decision to file for disability retirement benefits.  Aside from the psychological anguish which must be confronted (feelings of worthlessness or devaluation of one’s worth because we live in a society which places a high value upon productivity, work, and output & competence in our jobs, despite our giving lip-service to “family”, “relationships” and “community”), the potential disability retirement applicant must also make pragmatic decisions based upon a variegated spectrum of financial, professional, family & economic circumstances.  Such foundational, decision-making factors could include:  one’s medical conditions (obviously); the type of job one is in; whether a disability retirement annuity is sufficient or even realistic; whether the job market outside of the federal sector is promising enough to allow for making up to 80% of what one’s job currently pays, in addition to the disability annuity; whether a parti-time position or partial income added to the disability annuity will be enough; whether one’s supervisor & agency will be “going after” you for performance, conduct, or excessive absences, and if so, how soon; and many other factors. 

It is always a trying time.  Consideration in filing for disability retirement benefits must be based upon a deliberative methodology, based upon serious consideration of multiple factors.  In basing a decision to file for disability retirement, it is best to do it right before considering doing it at all.  As such, consultation with an attorney who is an expert in the area of Federal Disability Retirement laws can be an invaluable source of information in making the “right” decision.

Sincerely,

Robert R. McGill, Esquire