OPM Disability Retirement and Accommodation

Knowledge of the law begets justice; ignorance of the law begets nothing.
— Anonymous

I have previously discussed the case of Bracey v. Office of Personnel Management, 236 F.3d 1336 (Fed. Cir. 2001). This is an important case which directly impacts upon the issue of accommodation.

One of the threshold issues which a federal disability retirement applicant must overcome, is the issue of whether or not the Agency can accommodate the individual’s medical disability. Much confusion surrounds this issue, and many a Federal and Postal employee has been denied his or her disability retirement because they slam into the brick wall called “accommodation”.

To begin with, 5 C.F.R. Sec. 831.1203 (a)(4) states that “the employing agency must be unable to accommodate the disabling medical condition in the position held or in an existing vacant position”. This definition was further clarified in the case of Bracey, when the Court therein stated unequivocally that if the Agency wants to accommodate you, it must be so that you can do the job you are presently slotted for. Thus, keeping you ‘officially’ slotted in a given position, but in reality having you do some light-duty, ‘other’ kind of job, is not considered an “accommodation”.

As the Court clearly stated, an agency cannot stop a disability retirement application “by assigning an injured employee to an ad hoc set of light duties as long as it continues to pay the employee at the same level as before”. (Page 1362 in Bracey). This is especially important for Federal employees who are being relegated to odds & ends jobs in some corner desk and declared by their Agency to have been “accommodated.” The law clearly states that this does not constitute legal accommodation.

For Postal Employees, it is important to be additionally aware of 5 U.S.C. Section 8451(a)(2)(D), which states that “an employee of the United States Postal Service shall not be considered qualified for a position if such position is in a different craft or if reassignment to such position would be inconsistent with the terms of a collective-bargaining agreement covering the employee.”

 

In Smith v. Office of Personnel Management, Docket #AT-844E-00-0140-I-1 (March, 2001), the Merit Systems Protection Board concluded that, where the Postal Service attempted to “accommodate” a disabled Rural Carrier by assigning her to duties or positions in the Clerk craft, it did not constitute “accommodation,” and therefore disability retirement was granted to the employee.

Thus, for the Postal Employee, putting together the Bracy decision, plus 5 U.S.C. Section 8451(a)(2)(D), and the Smith decision C all together means that (a) if you cannot do the essential duties of your particular craft and (b) your particular medical disability cannot be ‘accommodated’, then (c) the Postal Service cannot force you to perform duties normally reserved for other Crafts, and declare that you have thereby been ‘accommodated’.

Lack of legal knowledge is dangerous; possessing partial knowledge is often confusing; being armed with full knowledge can lead to success. Remember, disability retirement is a benefit which you, as a Federal or Postal employee, earned after 18 months (for FERS) or 5 years (for CSRS)of Federal service.

If a Federal or Postal employee becomes medically disabled, disability retirement must be looked upon as an investment, and as a rightful benefit earned by his or her service to the Federal Government. One should not throw away such an investment benefit by being ignorant of the law.

If you believe that you need to consult an attorney concerning disability retirement, please contact me at 1-800-990-7932 or email me at federal.lawyer@yahoo.com.

Robert R. McGill, Esquire

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