Federal Disability Retirement under FERS and CSRS: Revisiting “Accommodation”

How does agency “accommodation” of an employee’s medical condition impact disability retirement?


Life’s complexity can be found in the simplicity of events; likewise, simplicity can only be discovered within the wider boundaries of the complex. Such is the conundrum of life, and that is why the Fool in Shakespeare’s plays is wiser than the King, more profound in thought, and of greater complexity in character than all the players combined.
                                                                        — from Literary Quotes
To qualify for Federal Disability Retirement benefits under FERS or CSRS, one is required to prove, by a preponderance of the evidence, that one meets or exceeds all of the eligibility requirements under the law. As with all legal issues, administrative or otherwise, the hurdles which one must overcome – or, as an alternate metaphor one might offer, the multiple "pitfalls" which must be avoided — are pre-determined by the statutory requirements governing Federal Disability Retirement. One such requirement to overcome is the issue of an Agency’s attempt at "accommodating" the medical conditions of a Federal or Postal employee, and it is often helpful to revisit, reevaluate, and review the issue, both for didactic purposes (as Woody Allen might say) and for reasons of clarification. 
I have previously written on the important issue of "accommodations" which can directly impact Federal Disability Retirement applications under FERS & CSRS.  While there is a governing body of cases discussing the issue of accommodation, the prevailing case still remains Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001). There, 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."  
In a Federal Disability Retirement case, the first two provisions as outlined by the Court in Bracey are reserved for other articles — that the Applicant’s medical condition must be such that it is expected to continue for a minimum of twelve (12) months, and further, that there is a "connection" between the medical condition and one’s Federal or Postal job, such that one negatively impacts upon the other. It is the third "issue" – concerning "accommodation" — which is often misunderstood, misinterpreted, and as a result, often creates hazards and pitfalls for Federal and Postal Disability Retirement applicants.
In order to be successful at filing for, and obtaining, Federal Disability Retirement benefits, one must understand (and tread carefully around) the issue of an Agency’s effort at "accommodating" an individual. Most efforts employed by a Federal Agency never constitute what is legally considered an "accommodation".   However, because Federal and Postal employees often possess a misconception as to what the conceptual underpinnings are of the term "accommodation", they often harm themselves in the early stages of the process. As such, it is important to go back to the basics.
First, the statutory basis: 5 U.S.C. 8337(a) states that a disabled employee is eligible for disability retirement unless the employee is able to render "useful and efficient service in the employee’s position", or is qualified for reassignment to an existing vacant position in the agency at the same grade or level. Again, the "useful and efficient service" part of the statute is not the issue for the present article. It is the second part of the statutory language which is important to understand — the concept of "accommodation". 
Can your Agency do something so that you can continue to work in your job, or alternatively, reassign you to an existing vacant position at the same pay or grade?  Often, Agencies will do things to try and "help" the employee, such as: Temporarily perform some lesser duties than what the position calls for; allow the employee liberal leave policies; allow the employee to take LWOP; minimize travel requirements; and many other "accommodating" measures (as that term is often loosely used) to keep the employee as productive as possible. But do these measures rise to the level of meeting the legal definition of "accommodation" in the context of Federal Disability Retirement laws? The answer is, quite simply, No.
And this makes sense. First, let me state unequivocally that there is absolutely nothing wrong, wicked, or nefarious in Agency supervisors who attempt to alleviate some of the more onerous and demanding physical or cognitive aspects contained as requirements in a position description. Good supervisors do whatever it takes to keep good employees on board. But for purposes of filing a Federal Disability Retirement application, do such measures to allow the Federal or Postal employee to "stay on board" preclude one from qualifying for disability retirement? Do the measures which the Agency allows for constitute an "accommodation" under Federal Disability Retirement rules and regulations? 
Ask yourself this question: Assume that for 10 years, a supervisor has been allowing a "good employee" to work at lighter duties and assignments. Then, one day, a new supervisor comes into the office and declares that from that day henceforth, everyone must perform all of the essential elements as required by his or her position description. Does the fact that the employee was able to do the job before, but not now, make a difference? The answer to this question goes to the heart of the concept of "accommodation", where the Court in Bracey stated unequivocally that 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". (Bracey, 236 F.3d 1356, at p. 1362)
In the hypothetical provided above, could you argue that, because the person has been able to perform in his position, that he is precluded from filing for Disability Retirement benefits? The answer is, actually, quite simple: None of the measures employed by the supervisor constituted an "accommodation" under Federal Disability Retirement laws, and the person in the example could have, at any time, filed for Federal Disability Retirement benefits. Let me explain. The Bracey decision had a follow-up companion case, which targeted the very issue of the hypothetical as described in the preceding paragraph.  In Marino v. OPM, 243 F.3d 1375 (Fed. Cir. 2001), the Agency assigned the Appellant an unofficial set of office duties, and did nothing to make any adjustments to his official position or altered the work environment of his official position such that it would "enable him to perform the duties of his official position" with the Agency. 
What the Administrative Judge at the Merit Systems Protection Board did (which prompted the appeal to the U.S. Court of Appeals to the Federal Circuit), was to focus upon the Federal employee’s "ability to perform useful and efficient service in his unofficial light duty position, and not his official position of Materials Handler."
While it is commendable for a supervisor to try and keep a good employee "on board" by providing for light duty assignments, such unofficial duties do not go to the heart of what the concept of "accommodation" means. 
"Accommodation", if it means anything, must encompass measures which allow for the Federal or Postal employee to continue to perform the essential elements of the job. If the measures initiated by the supervisor do not result in the performance of the essential elements of the job, then the employee has not been "accommodated". Accommodation, in essence, means that, with the help of the Agency, the Federal or Postal employee can continue to perform the essential elements of the position as described in his or her position description. Anything less, and all that a person is doing is performing an "ad hoc set of light duties as long as it continues to pay the employee at the same level as before."
Where does all of this leave us – especially in the context of filing an application for Federal Disability Retirement benefits under FERS or CSRS? It comes down to the foundational essence of what it means to be "eligible" for Federal Disability Retirement benefits. 
To be eligible: One must have a medical condition which lasts for a minimum of 12 months, such that the medical condition prevents one from performing one or more of the essential elements of one’s job, and the Agency is unable to initiate any measures such that the person can overcome the medical conditions to continue to perform the essential elements of the Federal or Postal position. This, in a single sentence, is the essence of what it takes to be eligible for Federal Disability Retirement benefits under FERS or CSRS.
 Oh, but that life, the Shakespearian Fool, and the universe of laws which daily govern us, could be so simple.


About the Author

Attorney Robert R. McGill specializes in Federal Disability Retirement cases helping Federal and Postal workers secure their OPM Disability Retirement benefits under both FERS and CSRS. For more information about his legal services, visit his Federal Disability Lawyer website.