FERS Disability Retirement: Accommodations, in Practical Terms

— Should a man at sea fear the claws of a tiger? Or the son of a nobleman, the gossip of the sycophants and admirers in the caliphate’s court? Better to view the world from the mouth of a tiger, than to fathom the sharpened nails of a conniving court’s courtesan. For knowing which enemy will truly harm is the first job of the sage.

— From Proverbs from the Lost Fragments


The issue of accommodations for the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits, whether under FERS or CSRS, from the U.S. Office of Personnel Management, can be a complicating factor. On the one hand, the entire issue may be approached as merely comprised of, and dispensed with, a single form – Standard Form 3112D, otherwise entitled, “Agency Certification of Reassignment and Accommodation Efforts”; on the other hand, there is an entire body of case-law and statutory authority which clarifies (some would insert, instead, the term “muddles” or other applicable synonym thereof) and expands upon the concept beyond the delimiting form itself – comprised of a series of boxes and short statements following each, providing for a multiple choice of options. For, ultimately, the question of accommodations comes down to a pragmatic decision on the part of the agency and the Federal or Postal employee: From the agency’s perspective — How valuable is this employee and to what extent are we willing to go in order to retain the talents of the individual? And from the Federal employee’s viewpoint — Can anything which the agency does counterbalance the impact imposed by the ongoing medical condition, such that it remains worthwhile to stay with the agency despite the progressive deterioration upon my health?

“Accommodation” is a legal term with technical applications, as well as unforeseen implications. A quick survey of the relevant case-law reveals a complexity of definitional refinements over the course of multiple and evolving years, as to the legal applicability of the concept. Thus, for example, in Gooden v. Office of Personnel Management, 471 F.3d 1275, 1279 (Fed. Cir. 2006), the Court proposed that, in order to become qualified for Federal Disability Retirement benefits, it must be shown that all proposed accommodations of an applicant’s disabling medical condition must be found to be “unreasonable” (citing 5 C.F.R. Section 844.103(a)(4)), and noting that an accommodation is defined as “a reasonable adjustment to an employee’s job or work environment that enables the employee to perform the duties of the position…” In other words, the Court clarified, an accommodation requires “adjustments that allow an employee to continue to perform her official position.”

Thus, there are two sides to the issue of accommodations: On the one hand, an accommodation must be “reasonable” – and the spectrum of reasonableness would be defined by the needs of the agency, the burden any such attempt at any given accommodation would be placed upon the agency, and the cost-benefit analysis of any such attempt. On the other hand, any such accommodation offered must be such that it allows the employee to perform all of the essential elements of the official position description. Thus, generalized examples of legally viable accommodations would include modifications of the worksite, schedule adjustments, changes in equipment, and similar such workplace refinements. While such legal parlance provides a generalized overview in guidance concerning what constitutes a legal accommodation — in practical terms, what does all of this mean? For, the problem with the entire concept of “accommodations” is precisely the fact that it speaks to a macro-concept of the workplace, while ignoring the day-to-day practical universe of “the job” – i.e., the micro-reality of everyday world occupied and attended to by the Federal and Postal Worker.

To begin with, medical conditions themselves are looked upon by the law as if they were mathematical ratios of 1-to-1 correspondence: bad back equals expensive ergonomic chair; loss of visual acuity, voice-activated software; can’t stand for too long, let him sit; can’t sit for extended durations, provide an elevated desk, etc. But rarely do medical conditions fit into such neat and static categories of accommodating functionality. Take, for instance, psychiatric conditions which may include Major Depression, Anxiety, uncontrollable panic attacks, etc.; and the concomitant side effects of psychotropic medications which must be prescribed in order to allow for a minimal level of functionality in the workplace. Or auto-immune conditions, and the impact of Fibromyalgia, Chronic Fatigue Syndrome, residual effects of chemotherapeutic modalities of treatments, etc., where profound fatigue, cognitive dysfunctions and loss of intellectual acuity, in a sedentary position which requites sustained cognitive focus and concentration – what possible ratio of corresponding accommodations could possibly be accorded?

The reality of the workplace is such that most medical conditions fail to meet the requirements of what constitutes a legally-viable accommodation. And so what we are often left with are a series of refinements and adjustments which fail to rise to the level of a “legal accommodation”, but nevertheless allow the Federal or Postal employee to continue to work for a period of time. This happens every day in the Federal workforce, and there is nothing wrong with such unofficial, non-accommodating accommodations. Thus, the agency may say to the Federal or Postal employee – “You no longer need to travel”; “You can telework 3 days a week”; “No need to meet with vendors”, etc. The cost-benefit analysis will often result in the agency valuing the knowledge, experience and specialized expertise of a given Federal or Postal employee, such that unofficial and temporary alleviation of certain key elements of one’s position description will allow for the continuation of employment – and there is absolutely nothing wrong with such an approach.

At the same time, however, the agency must understand that, during the entire tenure of allowing for the unofficial accommodations, the Federal or Postal employee could have at any time filed for, and been approved, Federal Disability Retirement benefits from the U.S. Office of Personnel Management. This is because none of the unofficial modifications were legally-viable accommodations, and therefore never served to prevent the Federal or Postal employee from filing for Federal Disability Retirement benefits – except in a pragmatic way, in that the benefit of such modifications allowed the Federal or Postal employee to continue to work, despite the medical condition and the restrictive impact of the disease or injury upon the ability to continue to work. Such unofficial “accommodations” by the workplace constitute commendable attempts by agencies to retain the valuable experience and technical expertise of its employees; but when the Federal or Postal employee finally needs to file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, it doesn’t mean that the agency has failed; rather, it may simply mean that the medical condition has progressively deteriorated to the point of no return, and where the agency’s attempts have crossed the spectrum’s line from that of “reasonable” to ones which have become too onerous or burdensome to maintain or expand upon.

Ultimately, and in practical terms, most accommodations are dictated by the extent, severity and chronicity of the medical condition itself. Most attempts at accommodating a medical condition fail – precisely because most medical conditions constitute a “non-accommodatable” circumstance of life. That is why any such attempts by an agency to accommodate an individual’s medical condition must be within the purview of “reasonableness” – lest the cost of such an attempt be so prohibitive as to mandate unlimited risks and expense. Thus do we come “full circle” – for, the bottom-line question for Federal and Postal employees is: What does it all mean? For Federal and Postal employees filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the issue of accommodations should be taken seriously, but only as a secondary, peripheral concern. The order of priorities should always be: Treatment of the medical condition; continuing, if possible, the economic viability despite the medical condition; serious consideration in filing for Federal Disability Retirement benefits in the event of interference with the immediately-preceding concept; and lastly, can the agency accommodate me.

In all likelihood, the answer to the final query will be: Not likely.

I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

Sincerely,

Robert R. McGill, Esquire

 

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