A thought occurred to me recently, and I thought I’d post my initial conclusion here – I’m sure I will post more on this topic as my thought and case law develops.Effective January 1, 2009, the Americans with Disabilities Amendment Act went into effect. The changes in the amendment are substantial – without going into too much detail here, the Act restores the original intent of the ADA: to remove the barriers that disabled employees face in the workplace.
The MSPB and the EEOC will be struggling and grappling with issues of retroactivity and development of new case law for years. In the short run, I expect to see more claims of disability discrimination and more settlement of these cases (to avoid generation of unfavorable case law).
I also expect, over time, to start seeing OPM reject more applications for disability retirement. Why? Because your employing Agency must attempt to accommodate you before you are eligible for disability retirement through OPM.
If the ADA Amendments Act will lead to the accommodation of more disabled employees – a large portion of whom simply took disability retirement because the Agency claimed they couldn’t be accommodated – doesn’t it stand to reason that OPM should lean harder on Federal Agencies to accommodate its disable workers?
This could put a lot of employees in a tough spot – they may get rejected for disability retirement by OPM because the Agency can – and should – accommodate their medical condition. However, the Agency is denying them accommodation and not allowing them to work. What is a Federal employee to do in this predicament?
If you are a disabled federal employee, and you are physically and mentally ready, willing and able to work, I recommend that you FIRST exhaust yourself in seeking accommodation from the Agency.
This is different advice then you will get elsewhere, who advise that you should just apply for disability retirement right out of the gate. Why is this different? Because I am assuming, that if you are reading this post, you are ready, willing and able to work with your medical condition, but your employing Agency is being obstreperous and refusing to accommodate you.
If your medical condition precludes you from working, even with an accommodation, then this blog entry may not have any relevance to your situation.
What, then, are some ways to exhaust yourself in seeking accommodation at the Agency:
1) First, identify and request an accommodation. The Law Office of Eric L. Pines, PLLC, can help you to do this.
2) If your request is denied, file an EEO Complaint claiming disability discrimination through denial of reasonable accommodation.
3) If you have been placed on LWOP for 15 days or more, and if legally appropriate, consider filing an MSPB Appeal claiming that the Agency has constructively suspended you and committed disability discrimination in doing so. Since a claim like this is a “mixed-case”, you will need to evaluate whether you should first go to the EEOC or the MSPB with a claim like this.
If you are in that group of employees who wants to keep working, but feel that your employing agency has left you no choice but to seek disability retirement because they have failed to accommodate you, you might consider this approach:
At the same time you file an appeal for disability retirement, file an MSPB Appeal challenging your Employing Agency’s decision not to accommodate you. The grounds for this appeal would be ” involuntary retirement:.
Normally, the MSPB Administrative Judge is going to adjudicate and issue a decision on this appeal before you complete the OPM Disability Retirement process. The MSPB AJ has 120-180 days to issue a decision. By the time OPM receives your application, rejects it, receives your request for reconsideration, declines to reconsider, and provides notice of your MSPB Appeal right, your involuntary retirement will most often be concluded or near conclusion. So, consider this appeal as a type of “legal insurance” in the event that OPM decides that your Agency could and should have accommodated you.
If an Agency could have accommodated you, and failed to do so, that deprives you of the ability to freely choose to apply for disability retirement, and your application may be rendered moot by an Order of an MSPB Judge that your application for disability retirement was involuntary.
If, on the other hand, the Agency cannot accommodate you, and the MSPB finds as much in a written decision on an involuntary retirement appeal, then OPM is going to have a hard time arguing that you should not get disability retirement (solely on the grounds that you could have been accommodated by the Agency).
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.
Before taking any action discussed in this post, you should consult with your attorney – or an attorney – to determine if that course of action is appropriate for you. Every case is different, and what’s discussed in this post may not be right for you under the facts and law of your case.
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 reasonable accommodation, involuntary retirement appeals, or denial of disability retirement by OPM, contact an MSPB attorney at the Law Office of Eric L. Pines, PLLC, to schedule a telephone consultation.
Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.
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