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

CSRS & FERS Disability: An Art Form

As with all effective submissions — pleadings, motions, legal memorandums and, alas, Federal Disability Retirement applications — it should never be approached in a mechanical, one-to-one ratio-like, mathematical manner.  Of course it should contain the technical terms, the medical terms, and the legal arguments.  However, disability retirement under FERS & CSRS — especially the Applicant’s Statement of disability and any legal arguments — should not be matter of matching up a one-to-one correspondence between the medical condition and the particular essential elements which it prevents or impacts.  Certainly, the effect and the conclusion should contain that conceptual correspondence; however, as all good writing contains a technical side, it is also important to weave the story of the human condition and see the writing as an “art” form.

The impact of the human story is important in convincing and persuading the OPM representative to not only understand the medical condition, but to get a sense of empathy for what the applicant is going through.  It is a delicate balance to achieve; yes, the hard legal arguments should be made in order to “force” OPM to see that, legally, they are obligated to approve a disability retirement application; at the same time, if you can touch the empathetic nature of the OPM representative, so much the better.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Accommodations

While I am often asked about the intersecting connection between the ADA (Americans with Disabilities Act) and Disability Retirement laws under FERS & CSRS, and the issue of accommodations, my short answer is that the two areas of law rarely directly intersect. “Accommodation issues” under disability retirement law rarely present a problem in a practical sense. 

The term itself is rarely applied properly; the best way that I can describe what the term “accommodation” means, in its technical application, is by giving the classic example:  A secretary who suffers from a chronic back condition is unable to perform her secretarial duties because of the high level of distractability from her chronic pain.  The agency purchases an expensive, ergonomic chair, which relieves the chronic pain; she is able to perform the essential elements of her job.  She has thus been “accommodated”. Thus, the definition of “accommodation” is essentially where the Agency does X such that X allows for employee Y to continue to perform the essential elements of Y’s job.  Further, an accommodation cannot be a temporary or modified assignment; in fact, it is not an “assignment” at all — it is something which the Agency does for you such that you can continue to perform your job. 

Thus, as a practical matter, it is rare that an Agency will be able to accommodate an individual. Further, when it comes to psychiatric disabilities, it will be rarer still -especially when the essential elements of one’s job requires the cognitive capabilities which are precisely that which is impacted by the psychiatric medical conditions.  As such, the issue of accommodations is rarely a real issue, and further, people who are attempting to enforce the provisions of the ADA are not those who are truly seeking disability retirement, anyway.  It is the very opposite — they are trying to preserve their jobs, and to force the Agency to provide an “accommodation” under the law.

Sincerely,

Robert R. McGill, Esquire