CSRS & FERS Medical Disability Retirement: The Supervisor’s Statement

The Supervisor’s Statement (Standard Form 3112B) should be a form with negligible impact, unless it is to inform the Office of Personnel Management that (A) the individual Disability Retirement applicant was placed in a light duty, temporary position, (B) that the Agency could not accommodate him/her, and (C) to describe how the Federal or Postal employee filing for Federal Disability Retirement benefits was by all appearances limited in his/her ability to perform many of the essential elements of the job.  Such statements are often helpful to the Office of Personnel Management in a Federal Disability Retirement case.  

Most Supervisor’s Statements, however, are noncommittal. The lack of information provided by a supervisor reflects poorly upon the supervisor, insofar as it evidences non-engagement and lack of awareness of someone whose job it is to be aware of such things.  Every now and then, there will be a Supervisor who goes out of his or her way to make statements which clearly attempt to undermine a Federal Disability claim.  The way to approach such a Supervisor’s Statement, however, is not to focus a great amount of attention upon it; rather, to remind the Office of Personnel Management that this is a “medical” disability retirement application, and not a Supervisor’s disability retirement application.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Difficulty of Accommodation

For Federal and Postal employees filing for Federal Disability Retirement benefits under FERS or CSRS, the issue of accommodation must be addressed at some point, and one often wonders why a Federal agency is either unwilling or unable to accommodate the medical disabilities of a Federal or Postal employee.  

The line between “unwilling” and “unable” is often a complex one, because Agencies must contend with an obligation to attempt to accommodate the medical disability, but remember that such an attempt and obligation is merely one of “reasonable” accommodation.  This means that an implicit cost-benefits analysis is quickly engaged in, where the effort, likely success, extent of any workplace adjustments, whether in the end the essential and core elements of the job functions can be accomplished even with the reasonable accommodations, etc., can successfully be implemented.

An appearance of attempting to accommodate is often all that is indulged, and so the reality is that the Agency seems more unwilling than unable. Further, the simple fact is that, many medical conditions — e.g., those which are psychiatric in nature, are simply medical conditions which are termed “non-accommodatable“.  For, regardless of what workplace adjustments are made, a Federal or Postal worker suffering from Major Depression, anxiety, panic attacks, delusory thought processes, etc., where symptoms upon one’s focus, concentration, ability to have a reasoned perspective, etc., are all impacted, and therefore is inconsistent with any cognitive-intensive work.  As such, the medical condition becomes “inconsistent” with the particular duties of the job, and therefore it is an unreasonable and unattainable goal to consider any accommodations.  

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Continuing Confusions

In Federal Disability Retirement law under FERS & CSRS, the issue concerning accommodations can continue to remain a rather confusing area of law.  This is especially true when an Agency allows for an individual, either in the Postal Service (which is becoming rarer because of the prevailing winds of the National Reassessment Program) or in the non-Postal, Federal sector, to remain in a position and perform much of the lighter duties of the job, and to allow for one or more of the essential duties of the job to be delegated to others, or not be performed at all.  Now, such a situation can continue on for years, and there is nothing inherently wrong with such an arrangement (aside from the fact that the other Federal workers to whom such work is “delegated” may grumble and complain about fairness or, more likely, that some of the work is never completed), especially if the work which the injured individual performs is valuable to the Agency — even in such a “light duty” status.  

What must be kept in mind, however, regarding the relevance and significance to filing a Federal Disability Retirement application under FERS or CSRS, is that throughout the entire time-period of being on such light duty, the Federal or Postal worker could have, at any time, filed for Federal Disability Retirement benefits and should have been approved.  This is because such temporary “light duty” arrangements never constituted an “accommodation” under the law, and the Federal or Postal worker was eligible for Federal Disability Retirement benefits regardless of remaining in the “light duty” job.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Agency Accommodation Reiterated

In most cases, the agency is unable to accommodate the individual.  By “accommodation” is often meant lessening the workload, or temporarily allowing for the medical conditions resulting in certain limitations and restrictions to be taken into account — for purposes of travel, for sustained periods of sitting, for physical aspects of the job, etc.  But such temporary light-duty allowances do not constitute a legally viable “accommodation”.  But one must always remember that, while such measures by the Agency do not constitute an accommodation under the law, and as such do not preclude a Federal or Postal employee from filing for and being eligible for Federal Disability Retirement benefits, nevertheless, there is nothing wrong with the Agency providing for such temporary light duty modifications of the job.  In fact, it reflects well upon the agency that it would go to such extents, even if for only a temporary period of time, in hopes that the Federal or Postal employee will be able to sufficiently recover to return to “full duty”.  

Remember that there are at least two senses of the term “accommodation” — in the layman’s sense of some temporary measures to allow the employee to continue to work; then, in the legal sense of a viable “accommodation” under the law.  Don’t confuse one with the other.

Sincerely,

Robert R. McGill, Esquire

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 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