This is a strange world we live in. The Covid-19 Pandemic has impacted all sectors of the economy, devastated large segments of our society, ravaged the older generation and effectively shut down social interaction. Federal employees and U.S. Postal workers may appear to be relatively unscathed because they remain employed, salaried and productive — much of it through teleworking arrangements. Certain jobs, of course, cannot be accommodated through teleworking. Thus, Air Traffic Controllers, Special Agents, TSA workers, Criminal Investigators, Correctional Officers, CBP Officers and a multitude of other positions do not easily lend to teleworking, and even those who have the limited capability of working from home must still come into the office to pick up mail, obtain files and otherwise interact and interface with other essential elements of the position. Whether by actual consequences of the Corona Virus, or the potential thereof, Federal Disability Retirement must be an option open to Federal and Postal employees.
The laws governing Federal Disability Retirement are simple enough: A medical condition suffered while being a Federal or Postal employee, which results in a Federal or Postal Worker being prevented from performing one or more of the essential elements of one’s position. In the well-known case of Bruner v. Office of Personnel Management, 996 F.2d 290, 293 (Fed. Cir. 1993), the U.S. Court of Appeals there clearly stated the applicable standard for disability retirement determinations, stating therein that one of the criteria was the demonstration of a “deficiency in service with respect to performance, conduct or attendance, or in the absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position.” How will the potentiality of Covid-19’s after-effects — of attacking those who are vulnerable because of underlying medical conditions — impact a Federal Disability Retirement application? For, it is one thing to assert that a specific medical condition prevents a Federal or Postal employee from performing an essential element of one’s job; it is quite another thing to argue that, because of an underlying medical condition, a person cannot return to one’s position because, to do so will unreasonably endanger a person by being exposed to a deadly virus that has already proven to ravage and take advantage of pre-existing medical conditions. Of course, if a vaccine were to be produced, such issues may become a moot point. Until then, however, the issue of Covid-19 and its impact upon a Federal Disability Retirement application remains fluid, at best.
Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001), of course, is another oft-cited case which clearly delineates the eligibility criteria for Federal Disability Retirement. 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.” This 3-pronged clarification of the criteria for Federal Disability Retirement can be used in evaluating a case involving a Federal or Postal employee who suffers from underlying medical conditions which may potentially pose an unreasonable risk if exposed to the Covid-19 virus. Take statutory criteria No. 1 — where the disabling medical condition “is expected to continue for at least one year”; are we referring to the underlying medical conditions in isolation from the potential impact of being exposed to Covid-19? If so, unless the underlying medical conditions themselves prevent the Federal or Postal employee from performing his or her job functions, then it is unlikely that a Federal or Postal employee will become eligible for Federal Disability Retirement benefits in connection with the Corona Virus issue. However, if a treating medical doctor places unequivocal restrictions upon a person’s ability to go to work because of the potentially deadly impact that exposure to the Corona Virus would have upon that person’s health, would that be enough to qualify for Federal Disability Retirement benefits? Especially, if no vaccine or reasonable treatment regimens have been discovered? This is an open question that may have to be “explored” with test cases which will surely come about in the very near future.
With respect to criteria 2 & 3 of the Bracey decision, the same arguments would apply, of course. Non-attendance and deficient performance because of a medical restriction imposed by a treating doctor upon a Federal or Postal employee with a compromised immune system, underlying medical conditions such as diabetes or preexisting respiratory illnesses, etc., will no doubt be a basis for filing a Federal or Postal Disability Retirement application. Similarly, no Federal Agency or Postal facility will be able to guarantee that an “accommodation” can be provided where exposure to the Corona Virus will be prevented; for, in many instances, such exposure would essentially be a death sentence. “Incompatibility” is the “4th” standard in a Federal Disability Retirement application, when a Federal or Postal employee lacks any deficiencies in performance, conduct or attendance, but where a person’s medical conditions are no longer consistent with continuation in a Federal or Postal position.
Additionally, the question for the future will be — to what extent can a Federal Agency “accommodate “the potency and potentiality of a deadly disease? And, on the flip-side, what is a “reasonable” level of risk that a Federal or Postal employee who has an underlying medical condition must face before the law concludes that you are eligible for OPM Disability Retirement benefits? These are, ultimately medical questions insofar as one’s treating doctor will have to weigh the severity and extent of a person’s underlying medical condition, and balance such medical facts as against the risk of exposure to the Covid-19 virus and the potential resulting consequences. As more and more information is gathered by the Centers for Disease Control and Prevention and the rest of the medical community, some of these questions surrounding Federal Disability Retirement, accommodation needs and inherent risks in performing one’s Federal job or Postal craft will become clarified. Ultimately, however, when preparing a Federal Disability Retirement application under FERS which involves a Covid-19 issue — whether of its potential danger because of an underlying medical condition or its direct impact because it involves a Federal or Postal employee who has already contracted and suffered from its toll — a proper nexus must be established that connects all of the “dots” between the medical conditions involved, the essential elements of one’s Federal or Postal position, and the ability and capacity of a Federal Agency or Postal facility to properly “accommodate” a person’s medical conditions.
The Covid-19 Virus is, as many have characterized it, invisible, deadly, and still mysterious. What impact it has upon Federal employees and Postal workers who suffer from co-morbidities which, in and of themselves may not qualify for Federal Disability Retirement benefits; the extent of the potential for serious medical consequences if one contracts the Corona Virus; and the type of reasonable accommodations which must be offered by a Federal Agency or the Postal Service — these are still open-ended questions to be answered, perhaps by rulings in cases at the U.S. Merit Systems Protection Board. In the end, Federal employees should not have to face a choice between one’s job and the potentiality of exposure to the Covid-19; but in preparing an effective Federal Disability Retirement application involving the Corona Virus and its potential impact, a proper nexus will have to be established to show that an incompatibility exists between one’s Federal or Postal job and the medical risks involved.
Robert R. McGill is an expert advisor for Federal Disability Retirement claims, a highly specialized legal practice which he, as a Federal employee attorney, dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, publications and forum, please visit his Federal Disability Retirement blog.
This article was originally published in the HG.org directory (5/14/20)