Generally, the answer is yes. An agency may remove a FERS or CSRS civil service employee if he or she is unable, because of a medical condition, to perform the duties of the position. But, to sustain the removal at the MSPB, the Agency will need to make a pretty convincing proof.
To sustain its charge, the Agency will need to prove: a) that the federal employee has a medical condition; b) that there is a nexus between the federal employee’s medical condition and either (1) observed deficiencies in his work performance or conduct or (2) the a recurrence of the disqualifying condition would pose a reasonable probability of substantial harm.
A charge of medical inability to perform is different from a charge of unsatisfactory performance – the former requires medical evidence showing that the employee is incapacitated for particular job duties due to a medical condition. Although non-medical evidence regarding performance deficiencies might corroborate medical evidence of incapacity, the non-medical evidence alone is insufficient to establish the charge of inability to perform job duties.
If the evidence supports a finding that the Federal Employee has recovered, by the time of the hearing – regardless of whether or not the employee was unable to perform his duties at the time the agency took the action, the Board will reverse the removal.
And keep in mind – a removal for medical inability to perform the essential functions of a position is evidence that the federal employee is presumed entitled to disability retirement through OPM under the Bruner presumption.
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.
It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about an adverse action, an MSPB Appeal, or the MSPB in general, please contact an MSPB attorney at the Law Office of Eric L. Pines, PLLC, to schedule a telephone consultation.