Additional Guidance on Disability Retirement Supervisor’s Statement

Some have asked me whether acceptance of a temporary light duty assignment is of concern in a disability retirement application. If you look at SF 3112B (Supervisor’s Statement), Section E(3), the question is whether the employee has “been reassigned to ‘light duty’ or a temporary position?

If the Supervisor answers “No”, then of course there is no issue which would arise which would impact a disability retirement application; if the Supervisor answers “yes”, then it can actually be used as an argument for a disability retirement application, because it can be argued that the fact that the Agency has reassigned the applicant to a temporary “light duty” position is additional evidence of the acknowledgment by the Agency that the applicant could not perform one or more of the essential elements of one’s job, and therefore in such recognition, the Agency provided for a temporary light duty assignment. Acceptance of such an assignment is not a bar to disability retirement, precisely because it is not a “reassignment” to a “vacant” position, as required in the case of Bracey v. OPM.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OWCP, Light Duty & Federal Disability Retirement

As I stated in my previous blog, OWCP is not a retirement system. Instead, it is meant to return an injured worker back to productivity with his or her agency. This is done through means of providing for medical treatments; paying the Federal employee temporary total disability benefits during the time of treatment and recuperation; then, if the Federal or Postal employee is unable to return to the former position in full capacity, to offer a “modified position” to the employee.  At each step in the process of OWCP/DOL, the onerous and burdensome hand of the process becomes clear — for, if at any time, the employee refuses to follow the mandates given by OWCP, the real threat of having one’s temporary compensation suddenly terminated is always a possibility. 

Thus, in accepting OWCP benefits, there is a clear trade-off:  tax free compensation for the price of being completely governed by OWCP.  Then, when the modified job offer is given, you have no choice but to accept it, in whatever form, and must be accepted “as is” — otherwise, your temporary total disability payments will be terminated.  Remember, however, that accepting such a position does NOT preclude you from filing for disability retirement benefits, because the case-law governing Federal Disability Retirement has a “safety” feature:  in order to be considered a legally viable “accommodation” under the law, the modified job that is offered and accepted must have been one which was previously in existence, and vacant.  It cannot be your old job slot, modified by a piece of paper prepared by your agency and the Department of Labor.  It must be a true job.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Further Thoughts on Reasonable Accommodation by the Agency

The problem with Agency efforts to provide an employee with reasonable accommodations is that such attempts are too often than not, neither “reasonable” nor legally viable accommodations.  Let’s remember that a legally viable “accommodation” is that act, allowance, or modification, which allows the employee to continue to perform and complete the core or essential elements of one’s position.  Further, Federal and Postal employees need to understand that there is nothing inherently wrong with an Agency providing an accommodation that is neither legally viable (for Federal disability retirement purposes) nor “reasonable”.

Let me explain.  Let’s say that an employee works for the Postal Service.  He or she gets injured, and let’s even assume that it is a valid OWCP Department of Labor claim.  At some point, because OWCP/DOL is NOT a retirement system, they will often “create” a “modified position” and make a modified, or light-duty job offer.  It could be as extreme as sitting in a corner and answering the telephone.  Now, if the individual gets the same pay, there is nothing inherently wrong with such a modified job offer.  However, at the same time, you need to remember that accepting such a modified job offer does not preclude the employee from filing for, and getting approved, an application for Federal Disability Retirement.  This is because the modified (or “light duty”) job offer is not a real, previously-vacant position, and therefore is neither “reasonable” nor truly an accommodation under federal disability retirement laws.  Nevertheless, there was nothing wrong with the Agency making up such a “modified job” and offering it to the employee.  This is true of all Agencies in the Federal Government, across the Board, from FAA Air Traffic Controllers who have lost their medical clearances, to IT Specialists who have lost their security clearances, to executive level administrators:  modified duties, and “make-up” positions, while remaining in the same position, does not mean that there is anything inherently wrong with the modified job offer.  It just means that such a modified job is neither a “reasonable” accommodation, and nor is it an “accommodation” at all — at least, not under the laws governing Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Additional Issues Concerning Resignation

An Agency has a legitimate concern with respect to the work that is not being performed while a person is either out on sick leave, or on leave without pay as a result of a medical condition.

On the other hand, Federal and Postal employees who have worked for a sufficient amount of time to be eligible for disability retirement benefits (18 months for FERS employees; 5 years for CSRS employees) have a legitimate expectation of bilateral loyalty — meaning that, inasmuch as the employee has been loyal in the performance of his or her job to the Agency, there is a reasonable expectation that the Agency will be loyal during times of medical hardship, and treat the employee with empathy and compassion.

At some point, greater friction begins to build as the time-frame keeps expanding; the Agency wants the employee back at work, or have the position filled. During the “friction” time, the employee has the leverage to have the Agency propose an administrative, non-adversarial removal based upon the medical inability of the employee to perform his or her duties. It is up to the attorney to persuade the Agency that the goal of the employee runs in the same goal-oriented direction as the Agency: the Agency wants the position; the employee wants disability retirement; both have a common end in mind — vacancy of the position so that the work of the Agency can be accomplished. On the other hand, resignation for the employee gives the employee nothing other than separation from the Agency; it gives the Agency everything it desires.

Sincerely,
Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Agency’s Actions Can Sometimes Be to Your Advantage

Postal employees, there is nothing inherently wrong with an Agency offering you modified or light duty assignments. If your Agency deems you to be valuable, they may want to modify your position in order to keep you. However, the mere fact that you accept and work at a “modified” position does not mean that you are thereby precluded, down the road, from filing for disability retirement.

In fact, most “light duty” or “modified positions” are not real positions anyway, and so you may have the best of both worlds for many years: be able to work at a light-duty or modified position, and still reserve the right to file for Postal Disability Retirement sometime in the future.

The reason for this is simple: in all likelihood, your SF 50 will not change, and you will still remain in the same, original position. As such, the “light duty” position is simply a “made-up” position which has no impact upon your ability to file for disability retirement later on. This is the whole point of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003), where the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “‘subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties“. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.”

Analogously, this would be true in Federal, non-postal jobs, when one is offered a “modified” or “light-duty position,” or where a Federal employee is not forced to perform one or more of the essential elements of one’s official position. Further, think about this: if a Postal or Federal employee is periodically offered a “new modified” position once a year, or once every couple of years, such an action by the Agency only reinforces the argument that the position being “offered” is not truly a permanent position. Sometimes, the Agency’s own actions can be used to your advantage when filing for disability retirement.

Sincerely,

Robert R. McGill, Esquire

Recurring issues of FERS & CSRS Disability accommodation and light duty questions

The issue of Agency Accommodations — whether or not an agency can truly “accommodate” an individual; what constitutes a legal accommodation as opposed to temporary light-duty arrangements which do not constitute legally viable accommodations under the standards as expressed in Bracy v. OPM and other cases — keeps coming up in the form of questions and concerns.

Let me just state a few thoughts: First, obviously, the best scenario is if the Agency checks off block 4(a) of SF 3112D, acknowledging that the “medical evidence presented to the agency shows that accommodation is not possible due to the severity of the medical condition and the physical requirements of the position.” Second, however, even if the Agency does not check off 4(a), it is not necessarily a problem, or even a valid concern. Agency Human Resources personnel are notoriously ignorant of the current case-law, and often mistake ad-hoc temporary assignments as constituting an “accommodation”, when in fact they represent no such standard or level of acceptability in disability retirement law. Finally, it is always mindful to remember that disability retirement is a medical issue, not one which is determined by non-medical personnel, and that is why it is important to focus first and foremost upon obtaining a legally sufficient medical narrative report.

Sincerely,

Robert R. McGill, Esquire

Accommodation under FERS & CSRS Disability Retirement

The issue of Accommodations is always an important one in FERS & CSRS disability retirement cases. Agencies on the one hand will often attempt to “put together” a set of duties for the employee to perform, and try and keep a productive employee with the Agency.

There is nothing wrong with this. Indeed, it may even be commendable for the Agency to try and “accommodate” a good employee in such manner. However, such an ad hoc set of duties is not legally an acceptable “accommodation”, and when it comes to filing for disability retirement, it does not preclude a person from being able to file for, and be eligible for, disability retirement. Court cases have upheld this view.

Thus, in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001), the Federal Circuit Court delineated and outlined the applicable provisions governing disability retirement, stating that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.”

Note this last provision, because that is the “all-important language” with respect to the issue of accommodations. What the Court in Bracey stated, is that the term “accommodation” is a legal, precise term, and it means that in order to be a true accommodation, the Agency must do one of two things: Either, provide for working conditions such that an employee can continue to perform all of the essential elements of the position that the employee is occupying, or place that employee into an existing vacant position — at the same pay or grade. This latter point is also important: in Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, and the reasoning of the court is clear: the Court Stated:

“We Agree with Mr. Bracey that OPM’s argument fails, because the term “vacant position” in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position. A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.” Id. at p. 1359

Further, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.” Id. at 1360.

Remember: if you have a medical condition such that you can no longer perform one or more of the essential elements of your job, your Agency can certainly give you a set of duties to keep you in that position, and if you can do those duties, and like the type of work provided, that is great. However, if and when a new supervisor comes he, that supervisor can negate such an ad hoc set of duties, and declare that all employees must henceforth be able to do all of the duties of the official position description. That is why an ad hoc set of duties does not constitute an “accommodation” under the law — because what is assigned “ad hoc” can also be taken away “ad hoc”.

Unless a Federal Employee is legally accommodated, he or she has the option of filing for disability retirement. Don’t be fooled by an Agency who says, “Don’t worry; we’ll reduce your workload and let you work a light-duty position.” That “light-duty” position will not necessarily be permanent, especially when the next Supervisor comes along.

Sincerely,

Robert R. McGill, Attorney