A common concern we hear from individuals interested in applying for disability retirement benefits is the timeline regarding their separation from federal service.
”If it is evident that my medical condition is impacting my ability to do my job, or if my supervisor knows I’m applying for disability retirement, will I lose my position right away?”
Fortunately, with some exceptions, federal employees have procedural protections for their removal from federal service. One reason why the federal government may remove an employee is due to their medical inability to perform the duties of their position, sometimes referred to as a medical removal.
What is a Medical Removal?
Although it may seem counterintuitive, being removed from Federal Service due to medical inability to perform your position due to can actually strengthen your application for FERS Disability Retirement. The finding that you are unable to successfully perform your position due to medical reasons is a threshold requirement for eligibility for FERS Disability Retirement benefits. Put simply, by medically removing you, your agency is agreeing that you cannot do your position due to your condition. Per Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed.Cir. 1993) this creates a presumption that you are disabled under OPM’s rules, which puts the burden of proof on the Office of Personnel Management to prove you are not disabled.
What’s the Medical Removal Process?
The first step in the process of removing most federal employees is the issuance of a Notice of Proposed Removal, at least 30 days prior to any removal action. The Notice of Proposed Removal will include the basis for the removal and explanation of the specific reasoning. Further, the agency usually includes notification that the employee has to the right to review the material relied on in making the decision and/or provide the materials to the employee. The agency will also provide a reasonable period of time, at least 7 days, for the employee to respond in writing or orally, with a lawyer if they choose.
If you receive a Notice of Proposed Removal, look out for whether the removal is being proposed due to “Medical Inability to Perform the Essential Duties of Your Position,” or a similarly worded statement. The Notice will generally detail the specific essential duties of your position that you are unable to perform. The determination will generally be based on based on medical documentation you’ve provided to your agency. This documentation may have been provided as part of a request for leave, reasonable accommodation, or other scenarios that have required information from a physician. If you went through a formal request for reasonable accommodation process, and your request was denied, details regarding the request and denial may also be included.
When you receive a Notice of Proposed removal, you should review it carefully and see if it contains the language to make it clear that it is a removal based on medical inability to perform your position.
Upon receiving a notice of proposed removal, it may be tempting to simply resign, and end the process. This may not be the best option for you. First, cutting the process short means hastening your termination, and any accompanying loss of benefits, like health insurance. Second, as we noted above, a medical removal can strengthen your FDR claim.
The most important decision once you’ve received a Notice of Proposed Removal is to decide if, and how you will respond to the notice of proposed removal. Response is intended to allow for the employee to address specific aspects of the Notice of Proposed removal that they disagree with, or completely disagree with the removal. A response is not required, but is essential if you need to clarify or correct any information in the proposed removal, or disagree entirely. If you are planning to respond, it is strongly advised that you speak with an attorney.
Once the Notice of Proposed Removal is issued, and the employee has had sufficient time to respond, the agency will then make a formal decision regarding removal and issue a written Decision Regarding Proposed Removal. This written notice will state agency’s final determination, including the basis for the removal decision, and confirmation that they agree with the allegations in the proposed removal. Importantly, the final removal notice will enclose the day that the removal becomes effective.
The Notice of Proposed Removal and the Final Removal also must include appeal rights. If you disagree with the decisions, you are allowed to appeal to the Merit Systems Protection Board. If during the process, you feel action is discriminatory, you can file a complaint with the EEOC
Once you have received a Notice of Proposed Removal, if you have not done so already, our recommendation is to contact an attorney who specializes in working with federal employees. Here are the law firm of Andalman and Flynn, we have over 20 years of experience guiding federal employees through the FDR retirement process.
About Andalman & Flynn, P.C.: Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The firm represents individuals seeking disability benefits throughout the country and practices family law throughout Maryland and the District of Columbia. The firm focuses on cases that impact the rights of everyone, and are there for clients when responsive legal help is most critical. The firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.