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CSRS & FERS Disability Retirement: Agencies Rarely Accommodate

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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

 

Federal & Postal Disability Retirement: The Agency & the Individual

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The National Reassessment Program (NRP) now implemented in full force, along with the Voluntary Early Retirement, the cash incentives (many have called to ask whether or not, if one is not eligible or offered the early retirement, but the cash incentive with a resignation is still being offered, should you take it?), and the Postal Service’s ultimate goal of shedding its payroll of anyone and everyone who is not “fully productive” by doing away with all “light duty” or “modified duty” slots (there actually is no “slot”, but rather merely an ad hoc set of duties “made up” on a piece of paper, which is what I have been arguing for years and years, and as the Bracey Decision by the Federal Circuit Court addressed) — all of these developments are merely a large-scale, macrocosmic level of what happens every day on an individual, singular basis. 

This is merely a reflection of an Agency, and how it acts, reacts and responds to injured workers, workers who have medical conditions which impact one’s ability to perform one’s job, and worker’s who are not “fully productive”.  It is merely that which happens every day to individual workers, but on a larger scale.  Think about it:  A Federal or Postal employee who develops a medical condition, and cannot perform one or more of the essential elements of one’s job; job performance soon begins to suffer, although perhaps imperceptibly at first; and the question becomes:  How will the agency, via its representative, the “Supervisor”, treat such an employee?  Sadly, more often than not, in a rough-shod, unsympathetic, and often cruel manner.  The Postal Service is simply doing it on a larger scale; but be fully aware, that every day, a Federal or Postal employee who is suffering from a medical condition, encounters such behavior and treatment — only, on a microcosmic, individual scale.

Sincerely,

Robert R. McGill, Esquire

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

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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