SF 3112D

OPM Standard Form 3112D: Agency Certification of Reassignment and Accommodation Efforts:

What does it mean to accommodate, and what, pray tell, constitutes an “effort” to do so?   Is the agency’s obligation to pursue avenues of reassignment or accommodation satisfied by the mere completion of SF 3112D and, if not, does the agency merely pay lip-service in its obligation, or are continuing efforts required to be actively undertaken?

If the Federal employee or Postal worker advances throughout the bureaucratic morass and finally gets an approval for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, what happens if, in the meantime, such agency efforts to continue to search for a suitable reassignment position, or a capacity to actually accommodate the medical condition, is attained?

Does a successful positional reassignment negate the Federal Disability Retirement application if such an offer of reassignment is refused by the Federal employee or Postal worker prior to an approval of a Federal Disability Retirement application?

If a Federal or Postal employee is given a temporary duty assignment, and the length of such an assignment or occupation of such a position is for an unlimited amount of time, does that impact a Federal Disability Retirement application as it sits pending a review by the U.S. Office of Personnel Management? What constitutes a legally viable accommodation? What is considered a valid reassignment?

Has the case-law, whether through the U.S. Merit Systems Protection Board or through the Federal Circuit Court of Appeals changed, altered, amended or expanded upon the concept of an accommodation or one’s right to a reassignment at the same pay or grade?

Is the issue of reassignment or accommodation as simple as SF 3112D makes it appear, or are there hidden regulatory, statutory and legal ramifications which must be carefully considered and side-stepped in having SF 3112D completed? Does the Federal employee or Postal worker who is filing for Federal Disability Retirement benefits have any input when the agency completes the OPM SF 3112D PDF Form?

These, and many more questions, need to be considered when a Federal or Postal employee, whether under FERS or CSRS, begins to prepare, formulate and file for Federal Disability Retirement benefits through the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Further Reflections on Accommodations

Because the term “accommodations” is rarely understood in its technical and legal sense, there is often the danger of a Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS to “shoot one’s self in the foot” in the very use of the term — or in checking certain boxes on the application form (specifically, SF 3112A, Applicant’s Statement of Disability), and further, there is the added danger that the Agency, in completing a Supervisor’s Statement or the SF 3112D, will mis-apply and mis-state the import, significance or relevance of any actions taken in attempting to assist the Federal or Postal employee.

Indeed, in a Supervisor’s Statement (SF 3112B) there are many instances in which the Supervisor completing the form will contradict him/herself when it comes to the issue of accommodations.  Moreover, the applicant him/herself will often mis-state the issue of accommodations on SF 3112A.

The term “accommodations” has a very narrow definition, and must be used and applied to the advantage of the Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS.  Additionally, it is not out of the realm of possibilities that the Office of Personnel Management also (whether deliberately or by chance) uses the very misuse (by the Applicant) of the term to its advantage.  In all cases, the term “accommodations” must be used and referred to carefully, technically, and with full insight of all of its consequences in the use or misuse of the word.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Accommodating Agency

During the course of preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the issue of “accommodations” must be addressed — if only in completing Standard Form 3112D (otherwise designated as “Agency Certification of Reassignment and Accommodation Efforts”).

It may well be that the Federal or Postal employee’s employing agency has been performing an informal “cost-benefits” analysis throughout the years, and that certain attempts at accommodating the Postal worker’s or other Federal employee’s medical conditions have been ongoing.

Thus, such attempts may include temporary suspension or unofficial elimination of certain key elements of one’s position description; allowance for teleworking for all or part of a workweek; disallowing necessary travel for onsite inspections, etc.  These and other attempts by an agency in order to retain the experience and technical expertise of a Federal or Postal employee, are all honorable and reasonable measures by the agency to keep the employee employed.

When the time comes, however, for the Federal or Postal employee to file for Federal Disability Retirement benefits because he or she has reached a “point of no return” in terms of the progressively debilitating nature of the medical condition, where all such informal accommodations are no longer helpful in allowing for continuing functionality in the workplace, the Federal or Postal entity may well have always considered such measures to meet the standard of an “accommodation”.  Such a thought process is normally wrong.  But agencies, in completing SF 3112D, will often thoughtlessly attempt to characterize such prior attempts as legally-viable accommodations.

It is up to the Federal or Postal Disability Retirement applicant to point out the error — something which OPM is more than willing to pounce upon unless corrected by the applicant or his/her attorney.

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

Federal and Postal Disability Retirement: Leverage

The ability to negotiate an advantageous settlement of an issue is dependent not merely upon the possession of leverage, but upon the effective use of that leverage.  Such effective usage would require, first and foremost, a dual presentation:  First, recognition of the value of such leverage, and second, the ability to have the opposing party believe that the value is exponentially exaggerated.  Once these dual components are satisfied, one can be assured that a favorable settlement can be reached.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, one often finds that the Federal or Postal employee is involved in multiple facets of collateral litigation or adverse actions with the Agency.  As part of a “global settlement” of legal issues, the agency will inevitably offer the Federal or Postal employee a “disability retirement”.  Yet, the first recognition of order which the Federal or Postal employee must address, is the fact that the agency is not the entity which can grant a Federal Disability Retirement.  Only the U.S. Office of Personnel Management can grant or deny a Federal Disability Retirement application to the Federal or Postal applicant.

Can the support of the agency help?  Yes — if formulated properly.  Be aware, however, as case-law supports OPM’s contention that settlements of collateral issues should not be used as a basis for obtaining the support of an agency in an application for Federal Disability Retirement.  A balancing act must be adopted.  And, as always, Federal Disability Retirement is first and foremost an issue of one’s medical condition.

Sincerely,

Robert R. McGill, Esquire

OPM Medical Disability Retirement and Agency Promises

In preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, it is often easy to confuse the varying roles of the individual and agency entities which are involved in the process.

First and foremost, the Agency for which the individual works, has certain administrative obligations which must be met — of completing certain forms, such as the Supervisor’s Statement (SF 3112B) and the Agency Efforts for Reassignment and Accommodation (SF 3112D).  The Office of Personnel Management, on the other hand, is the ultimate arbiter and deciding entity determining the viability of a Federal Disability Retirement application, whether under FERS or CSRS, as to meeting the legal criteria for eligibility for the benefit.

The agency cannot make promises to the Federal employee, or the Postal employee (if the case happens to be the U.S. Postal Service), as to “getting” the individual Federal employee or Postal employee, a Federal Disability Retirement.

There can certainly be actions taken by the agency, or the representative of the agency, which may help to “enhance” the chances of an approval of a Federal Disability Retirement.  However, enhancing the chances of an approval is quite different from promising to “give” or to “get” a Federal or Postal employee a Federal Disability Retirement from the Office of Personnel Management.  Only the latter entity can accomplish that.

As for any promises by the agency that “he said X” or “he promised Y” — get it in writing.  It may only be worth the paper it is written on, but at least by asking, you can determine the truth or falsity of such a promise.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Clarifying Accommodations

There is a conceptual and legal distinction to be made between an Agency’s “accommodations”, as used in a loose, non-technical manner, and being “accommodated” in accordance with the laws, regulations and statutes governing Federal Disability Retirement under FERS or CSRS, and as intended in usage on Standard Form 3112D, Agency Certification of Reassignment and Accommodation Efforts for the Office of Personnel Management.  

Often, when a Federal or Postal employee becomes injured (whether on the job or while on vacation is an irrelevancy for purposes of Federal Disability Retirement eligibility), the Agency will attempt to lessen the workload, allow the Federal or Postal employee to work in a modified manner, allow for “light duty” assignments, or even temporarily suspend certain essential elements of one’s job (travel, heavy lifting, required overtime, e.g., etc.), and such efforts on the part of the Agency are commendable, allowable, and perfectly within the acceptable structures of law.  

Such efforts by the Agency are often referred to loosely as an attempt to “accommodate” the Federal or Postal employee’s medical conditions, and indeed, it is a correct (but non-legal and non-technical) use of the term.  It is not, in terms of legal sufficiency, an “accommodation” to the extent that the narrow definition of what it means to be “accommodated” under the law is that an agency will provide an accommodation such that the Federal or Postal employee, with the accommodation, will be able to perform all of the essential elements of what the position requires.  

Lessening the duties temporarily, or suspending certain essential elements of the job for a prescribed period of time, does not allow for the Federal or Postal employee to perform those essential elements of the job, and therefore is not technically an “accommodation”.  That is why most accommodations are not accommodations at all, and as such, those accommodating actions by the agency do not preclude a Federal or Postal employee to file for, and be eligible for, Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire