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.  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

Medical Retirement Benefits for Federal & Postal Employees: Reminder (Continuing…)

So, how does one determine whether or not it is prudent to go out on LWOP completely, while awaiting for the decision on one’s application for Federal Disability Retirement benefits under FERS or CSRS?  Obviously, the initial criteria to be applied is whether or not you can afford to go out on LWOP.  Economic necessity (aside from considerations of one’s health and medical ability/inability to go to work during the long, drawn-out process) becomes a primary consideration.  If economic necessity dictates continuation of work, then the next question is, would your Agency consider allowing you to work 3 – 4 days a week, and allowing for 1 or 2 days to be taken off with LWOP?  This might be a prudent approach, since any back-pay for the first year, once your Federal Disability Retirement application is approved and payments start, will be paid at 60% of the average of one’s highest three consecutive years.  Thus, mathematically, it would make sense:  a minimum of 3 days of work quantifies to 60% or more, and so you would not be losing anything.  However, if your weekly average falls below the 60%, then you might want to consider going out on LWOP completely (again, only if your personal finances will allow for such).

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Viewing the Office of Personnel Management

Agencies are “like” people; they are “organic” organizations (a redundancy?), and as a corporate-like entity, they respond and react as people do:  cerebrally, emotionally, reactively, angrily, etc.  If one views an agency in this way — treating the entity as one would a person — then you will often get the same or similar results as when dealing with your brother, a spouse, or a neighbor.  And, indeed, as a logical approach, this only makes sense, because agencies and organizations are made up of people. 

Thus, when filing an application for Federal Disability Retirement benefits, it is often important to think of “incentives” in approaching the Office of Personnel Management, to make every effort to have a carrot/stick approach in filing a disability retirement application.  The “stick” part of it, of course, is the law — the threat of making sure that OPM knows that you will be willing to go the full course — to the Merit Systems Protection Board, to the Full Board Appeal, to the Federal Circuit Court of Appeals.  If OPM denies your case and they get it reversed at the appellate level, it makes them “look bad”.  That is the stick to hold over them — the force of the law.  The carrot part of it is to streamline it and make it as easy as possible by obtaining a clear and concise medical report.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Can the Agency Accommodate You?

The term “accommodations” continues to be a highly misused one.  There is the general conceptual application, as when an agency attempts to do something to help a Federal or Postal employee by “allowing” for “light duty”, or allowing one to work at a reduced schedule, or to take sick leave, annual leave, or Leave Without Pay.  But such actions (as kindhearted as they might be intended) do not constitute a legal accommodation under disability retirement rules, statutes, laws or case-law. 

To legally accommodate someone must always mean that the agency does something, provides something, or creates something of a permanent nature, such that it allows you to perform the essential elements of your job.  Temporary measures, or allowing you to take time off, does not allow you to perform the essential elements of your job — instead, it merely allows you take time away from being able to do your job.  Remember, on the other hand, that there is nothing wrong with your Agency doing these things to “help you out”.  It simply does not constitute, or rise to the level of, an “accommodation” under the law.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Back-Pay

Remember to not spite yourself, especially when it comes to financial considerations. If your medical disability is forcing you to take excessive LWOP, it might be better to go “cold turkey” and stay completely out on LWOP while you file for disability retirement benefits. This is because, once you get your disability retirement application approved, you will be paid “back pay” in a lump-sum form, back to the last day of your pay, at the 60% rate from your last day of pay forward for the first 12 months.

Thus, if you work only 2 days out of the week, and you take LWOP for the other 3 days, you are losing 20% of pay, because were you to go out on LWOP, instead of being paid 40% of your salary (2 out of the 5 days), you would be getting back-pay for essentially 3 out of the 5 days (60%). On the other hand, don’t go out on LWOP, then after 4 or 5 months, go back to work for a week — because in that instance, you will never recover the 4 or 5 months of LWOP, because the “last day of pay” will have been paid to you when you went back to work. While all of this may be a bit confusing, it is essential to your financial health and consideration when entering the complex process of Federal Disability Retirement under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire