There is the legend of the samurai who carried not a sword, but a sheet of paper. It appeared to present no harm and, indeed, it made the samurai look foolish and vulnerable. But the stories abound – of the three who dared to attack in the cloak of night, and when morning came there were three corpses, all with throats slit in a clean, surgically perfect manner – as if all that each had suffered was from a paper cut.
from Tales of a Ronin
Federal Disability Retirement under either the Civil Service Retirement System (CSRS) or the Federal Employees Retirement System (FERS) is a benefit which is accorded to all Federal and Postal employees who meet certain qualifying criteria. In its essence, one must prove by a preponderance of the evidence that:
(A) there exists a medical condition, and
(B) that the medical condition prevents one from performing one or more of the essential elements of one’s job. Over the years, the laws governing Federal Disability Retirement benefits under FERS or CSRS have evolved through cases brought before the Federal Circuit Courts and the Merit Systems Protection Board.
Laws – including Court opinions and decisions rendered by Administrative Judges at the Merit Systems Protection Board – are often categorized into two generic universals: as either a Shield or as a Sword. The distinction can be useful for didactic purposes.
For instance, in filing an application for Federal Disability Retirement benefits, the question of whether a Federal or Postal employee can be “accommodated” must be addressed. When a Federal or Postal employee finds that his or her medical condition prevents one from performing one or more of the essential elements of one’s job, he or she is considered “disabled” under the Law, and therefore would be eligible for Federal Disability Retirement benefits.
More often than not, such an individual will not be accommodated by the Agency, if only because “accommodation” is a difficult requirement to fulfill. Thus, for the Federal or Postal employee who is medically unable to perform the essential elements of one’s job, but who does not want to be relegated to a basement office in order to count office paperclips, the laws governing the issues of accommodations can be used as a shield against the Agency.
But what if an Agency wants to retain the Federal or Postal employee despite that employee’s inability to perform many of the essential elements of one’s job? What if, because of the knowledge, insight, and pure experience which would be lost if the Federal or Postal worker were to resign or otherwise be separated from Federal Service, retention of such a valued worker clearly outweighs the loss of productivity or quantifiable output such continued presence might pose? In many cases, knowledge and experience can never be replaced; and loss of such knowledge and experience may impact a Federal agency in exponentially quantifiable terms, where inefficiency of an agency begins to manifest itself because of the loss of a valued employee.
The balance between retaining valuable employees and severing ties with a once-productive one is a delicate issue – one which must always be approached with sensitivity, integrity, and social consciousness. An effective and productive Federal Agency is a dynamic organism whose microcosmic actions – those actions which seemingly occur between two or three individuals – will have a subtle but direct impact upon a macrocosmic scale. The problem when approaching a Federal or Postal worker who has a medical condition, is that the dividing interests between the individual’s needs, and the Agency’s service goals, quickly come into conflict, leading to a quickened pace of deteriorating relationships. Often, suspicions and hurt feelings quickly surface, and the once cordial and professional atmosphere which is so crucial to the smooth operation of an Agency can become infected with a sense of antagonism and adversity.
There is the collective theoretical entity defined as “The Law”, and the practical, pragmatic and day-to-day workings of a Federal Agency, which must certainly be aware of the Law, but must concomitantly deal with human beings on a personal level. Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001), as further extended in Marino v. Office of Personnel Management, 243 F. 3d 1375 (Fed. Cir. 2001), is a paradigmatic example of the interaction between “the Law” and Agency personnel relationships. The funny thing about “the Law” is that lawyers – and to a great extent, the non-legal general public – views all such cases as nothing more than gladiatorial battles, where winners and losers are easily identifiable. But in many ways Federal Disability Retirement benefits – and especially those who file for such benefits – should not be viewed in terms of winning and losing; rather, the issue of accommodations should be seen in human terms, and not just in legal terms.
Bracey is a landmark case which attempted to maintain the delicate balance between the Agency’s need to remain productive and efficient on the one hand, and the rights of the Federal employee who has incurred a medical disability, but continues to desire to work. Where an agency can “accommodate” a disabled Federal or Postal employee, no conflict exists; but that is the essence of the problem, is it not? What constitutes an “accommodation” under the law?
The legal definition of an accommodation, for purposes of Federal Disability Retirement, is anything that an agency can do for the Federal employee which enables “him to perform the critical or essential duties of his official position.” (See, e.g., Selby v. OPM, 2006 MSPB 161, decided June 9, 2006). Thus, placing a Federal employee in a temporary position, or a “light duty” position, does not constitute an accommodation under the law, precisely because such an action on the part of the Agency is to merely sidestep or otherwise avoid the primary concern: such a Federal or Postal employee is still unable to perform the essential elements of the official position.
Further, placing a Federal or Postal employee into a temporary, or “light duty” position, has the uncomfortable consequence of an air of arbitrariness or subject to capricious actions, especially by a future supervisor or change in managerial oversight. That which is temporary can be stripped and taken away by a future supervisor who changes his or her mind; and a “light duty” position can become obsolete upon the arrival of a manager’s capricious delight.
Against this background, the Federal Courts and the Merit Systems Protection Board which must follow the precedential holdings of the Federal Circuit Courts, the legal reverberations of the Bracey et al. decisions continue to prevail. Bracey should be seen more as a shield than as a sword; for, as a legal precedent, it is meant to protect the Federal and Postal employee from the arbitrary and capricious whim of a supervisor who wishes to do away with a Federal or Postal employee who is no longer performing all of the essential elements of one’s job. Thus, if a Federal or Postal employee is working in a light duty position, such work should not preclude his right to file for Federal Disability Retirement benefits. Yet, at the same time, what many Agencies fail to appreciate is that Bracey also does not preclude an agency from allowing the employee to work in a temporary, light duty position.
There is nothing wrong with an Agency retaining a valued employee by providing for light duty work. Sadly, however, many agencies see the Bracey decision as a “sword” – that since the legal definition of an accommodation must allow for the employee to continue to perform all of the essential elements of one’s job, and since such an accommodation rarely exists; that, therefore, the Agency must terminate the employee. But the Bracey decision is merely a shield – allowing for the Federal or Postal employee to file for Federal Disability Retirement benefits if the need arises; but if the Agency wants to retain the individual, there is nothing to stop it.
Such was the holding in Selby v. OPM (Docket No. SF-844E-05-0118-I-1), where the Merit Systems Protection Board found that, where a Federal worker who had a medical condition and could no longer perform the essential elements of his job, and who continued to perform light duty work up to the time of an RIF separation, that employee could still file for and qualify for Federal Disability Retirement benefits. The lesson to be learned in that case is the fact that the Agency wanted to continue to retain a valuable employee, and did not use the Bracey decision as a sword to cut loose the Federal employee; and when the time came, when the employee was separated from Federal Service because of a Reduction in Force, Mr. Selby was still able to use the Bracey decision as a shield, and to obtain his Federal Disability Retirement benefits despite having worked in a light-duty position up until his separation from Federal Service.
Ultimately, laws should be viewed as clarifying the respective positions between agencies and employees. Human compassion should always temper the hardened letter of the law. Moreover, where medical conditions become an issue with a Federal or Postal worker, an agency should go to great lengths to attempt to accommodate the employee. And by “accommodation” does not need to mean “legally viable accommodation” – but one which allows the valued Federal or Postal employee to continue working, even if he or she is unable to perform all of the essential elements of the job. Imagine that peculiar concept – an Agency which looks out for the dignity of human work.