Actions and Principles of Federal Agencies toward Their Employees with Disabilities before FERS & CSRS Disability Retirement

Can a person possess a core principle which declares that one should not be cruel to animals, but yet intimidate and harass a coworker?  Is it possible that one can state adherence to a philosophy, but act in ways contrary to such a declaration of fidelity to such a public policy?  Does authenticity and correlation between words and actions matter?

Of course, the simple answer is that hypocrisy has always been rampant throughout history, and one need only look at politics to come to the conclusion that speaking out of both sides of one’s mouth (as the proverbial adage is often conveyed) is a state of being that one can easily live with.  Thus the conundrum: Every and any question which begins with, “Is it possible that…” is one which has already been answered by the whims of history.

Public policy statements which declare that Federal agencies will seek every “reasonable” effort to accommodate an individual’s disability, are replete but often empty, precisely because words are open to interpretation.  And perhaps that is the “out” which many find easily excusable, in justifying the dissonance between words and actions.

Fortunately, for Federal and Postal employees, there is always the viable option of filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS. It is the “safety hatch” which can be used against agencies and the U.S. Postal Service in order to circumvent that self-contradicting public policy statement that medical conditions which impact one’s ability/inability to perform all of the essential elements of one’s job, will be “accommodated” to the extent that such accommodation is “reasonable”.

Since that which is reasonable is open to interpretation, the reality of retaining a Federal or Postal Worker who suffers from a medical condition such that the medical condition prevents one from performing one or more of the essential elements of one’s job, becomes as rare as that individual who speaks and acts in consistent harmony of fidelity to both.

For the Federal and Postal Worker who suffers from a medical condition, where the impact is felt directly in the workplace, and where the supervisor who kicks his dog in the privacy of his home but volunteers his time with the local SPCA begins to speak earnestly about the “mission of the agency“, it may be time to consider filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management; for, in the end, principles and actions matter when it touches upon one’s personal health, and the need for restorative relief from a workplace which defies consistency of either.

Sincerely,

Robert R. McGill, Esquire

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

Medical Retirement Benefits for US Government Employees: The Agency’s Attempt

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the issue of “accommodations” will necessarily surface, if only because the Agency must complete SF 3112D — the Form which is entitled, “Agency Certification of Reassignment and Accommodation Efforts” (which bureaucrat came up with that title?).

Agencies will often choose the wrong box to check because they will either misread the choices or misunderstand what the statements mean.  For instance, in the third choice of Question 4, it states, “Yes, describe below the accommodation efforts made, attach supporting documentation and provide narrative analysis of any unsuccessful accommodation efforts.”  The problem with the choice itself is that the entire concept of “accommodations” has been clarified, modified, and thoroughly discussed in cases which have been brought before the U.S. Merit Systems Protection Board and the Court of Appeals for the Federal Circuit, and such court opinions have been issued subsequent to the original meaning of the term when the Standard Form was first issued.

But when the Agency completes the form, they will often answer the question in terms of “allowing for liberal use of sick leave” or “letting the employee refrain from doing X, Y or Z”,  etc.  But allowing for temporary, light duty work does not constitute a “legal accommodation“, and thus does not go to the requested information.  In fact, the loosely-used term of “accommodation” is actually no accommodation at all.

What to do about it when it happens?  One must be discreet in how to approach it.  For most cases, the agency’s lack of understanding will have no impact at all, and it should not be responded to.  In other instances…

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

CSRS & FERS Disability Retirement: Agencies Rarely Accommodate

For whatever reasons, Federal Agencies rarely accommodate an individual who has a medical condition which impacts one or more of the essential elements of one’s job.  Whether the Supervisor is too busy to craft a viable accommodation plan, or whether the Agency is simply following the standard thoughtless response of the Federal Sector in general, the truth is that Agencies rarely, if ever, provide a truly viable, legally defined accommodation.  I receive calls every day from Federal and Postal employees who will state that the Agency is currently “accommodating” him/her; upon closer questioning, however, it always turns out that the term “accommodation” is being used in a non-artful, general sense, as in:  The Agency is letting me take LWOP; the agency is letting me take sick leave; the agency is letting me not travel too much; the agency is letting me…  What the agency is doing, whatever it is, is to temporarily keep you around until they decide your services are no longer needed.  That may be just around the corner, or you may be forgotten for some considerable amount of time.  Regardless, don’t be fooled; agencies rarely accommodate, and it is most likely the case that whatever “accommodations” the Federal or Postal employee believes that the Agency is providing, it does not fall under the legal definition of the term.

Sincerely,

Robert R. McGill, Esquire