Early Retirement for Disabled Federal Workers: The “Almost” Medical Inability to Perform Termination

Often, Agencies will proceed to propose a removal of a Federal or Postal employee based upon reasons which clearly “imply” one’s medical inability to perform one or more of the essential functions of one’s job, but explicitly, based upon other stated reasons — e.g., “Failure to Maintain a regular work schedule” or “Being Absent Without Official Leave (AWOL)“.

Then, the frustrating scenario is when the Agency — in the body of the proposed removal letter — refers to and acknowledges the existence of multiple medical conditions which form the foundation, reason and justification for being unable to maintain a regular work schedule or being absent from the job (whether with or without official sanction or approval).

The key in such circumstances, of course, is to try and attempt to make the “implicit” (references to one’s medical conditions and their impact upon one’s inability to perform one’s job) “explicit” (having the Agency change or amend the reasons to instead state:  “Removal based upon the employee’s Medical Inability to Perform his or her job”).

Such a change, of course, would be helpful in a Federal Disability Retirement application under FERS or CSRS, precisely because it would invoke the Bruner Presumption, which would then make it that much more difficult for the Office of Personnel Management to deny a Federal Disability Retirement application.  For, that is the ultimate goal:  to obtain an approval of the Federal Disability Retirement application; and any such advantage gained brings the Federal or Postal employee one step closer to that ultimate goal.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Bruner Revisited

In filing for Federal Disability Retirement benefits under FERS or CSRS, one should never pause or hesitate from affirmatively going forward in preparing a Federal Disability Retirement application based upon what the Agency will or will not do; is expected or not expected to do; or is predicted or not predicted to do.  One should simply move forward based upon one’s personal and professional circumstances, the extent of the medical condition, the impact of one’s medical condition upon one’s ability to perform the essential elements of one’s job, etc.  

Thus, for instance, where a Federal or Postal employee has informed the Agency of one’s medical condition, or one has filed for FMLA and submitted substantiating medical documentation, if the plan is to “wait” for the Agency to remove the Federal or Postal employee in order to obtain the advantage of what is generally known as the “Bruner Presumption,” such a plan is normally not the best course of action, for various reasons.  

First, the Agency may take an extraordinary amount of time, and in the end, may attempt to remove the Federal or Postal employee for “other reasons” (performance issues, for instance).  Second, whether or not one “gets” the Bruner Presumption in a case, that legal advantage is really for the Third Stage of the process — at the Merit Systems Protection Board — inasmuch as most of the Claims Reviewers at the Office of Personnel Management are not legally informed enough to know such a legal presumption from a nearby neighbor named John Doe Bruner.  And Third, one must affirmatively prove by a preponderance of the evidence, anyway, that one cannot perform the essential elements of one’s job because of a medical condition.  The Bruner Presumption, while a great thing to have, does not override the medical condition and evidence which must be presented.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The PIP

Let’s be very clear:  while the designation of a Performance Improvement Plan is often characterized or defined as an “opportunity” for both the Agency as well as the Federal employee to assess the performance of an individual, in order to show areas of needed improvement, to identify areas of needed accommodation, etc., the truth of the intended placement of a PIP is one clear roadmap:  To get rid of you.  It is a way for the Agency to have an “objective” basis in which to propose a termination of a Federal employee.  It is a way for the Agency to be able to say to the Judge, “Hey, we tried; we gave him/her the opportunity to improve…”

The consequences and linkage between a PIP and a Federal Disability Retirement application, however, is almost always there to take advantage of:  The Performance Improvement Plan (a corollary for the Postal employee is the “Investigative Interview”, or other similar nonsense) is proof-positive that one’s medical conditions directly prevent one from performing all of the essential elements of one’s job.

The key is to try and document the linkage — between the initiation of a PIP and having the Agency acknowledge that there are underlying medical conditions which caused the necessity of a PIP initiation, as well as leading to the resulting failure within the PIP.  While it may be that the Federal employee wants to continue to work, and not file for Federal Disability Retirement benefits under FERS or CSRS, the reality is that the initiation and institution of a PIP is a good indicator that filing for Federal Disability Retirement benefits is no longer a choice; it has become a necessity.

Sincerely,

Robert R. McGill, Esquire