By Peter Casciano, Esq.
An interesting case was decided earlier in the year by an appellate board of judges reviewing an initial decision at the Merit Systems Protection Board (MSPB).
This case involves a dispute where the employee was attempting to do the opposite of what I am normally trying to achieve for my clients: he was attempting to get his job back, or at least seek compensation, for what he deemed an improper removal for medical purposes.
My colleagues and I have previously given advice on Federal Disability Retirement (FDR) medical removal and discussed how harsh federal penalties against agency employees can be. A medical removal by a federal agency can be the easiest and most efficient way to obtain Federal Disability Retirement.
Apparently, the employee in the MSPB case was not concerned with federal disability and either wanted his job back or wanted compensation for an improper removal. The lower MSPB judge found that the claimant was improperly removed due to the agency’s failure to accommodate him.
His claim and the agency’s appeal gave the appellate judges the forum to discuss many of the issues I confront surrounding a medical removal by a federal agency.
Medical Removal by a Federal Agency & Reasonable Accommodation
There are three main elements needed for an agency to properly remove an individual for physical inability to perform:
- The disabling condition itself is disqualifying.
- Its recurrence cannot be ruled out.
- The duties of the position are such that a recurrence would pose a reasonable probability of substantial harm.
However, the court then clarified that this analysis only applies to positions that contain medical standards or physical requirements (i.e., law enforcement).
The court went on to articulate a separate standard for individuals with physical disabilities that do not have a job with medical standards or physical requirements. That standard is less clear and requires proof of a nexus between the medical condition and the deficiencies in performance or conduct. If that nexus is shown, further proof must then be shown that the employee cannot be reasonably accommodated in this position or a similar position within the agency.
The Court’s Findings
The court then criticized the lower judge’s failure to engage and analyze the actual job description of the employee, basically concluding that a reasonable accommodation can never involve eliminating an essential job duty. In other words, if operating heavy machinery is a primary job duty as defined by the job description, an employee cannot argue that “if you allowed me to never operate heavy machinery again, I would have been able to do my job.”
Lastly, the court found that because the employee didn’t request an accommodation, the burden does not fall to the agency to attempt to accommodate him. The medical removal was permitted to stand.
This is good language for many of my clients, but not for the claimant in this case.
Using a Medical Removal to Your Advantage
Oftentimes, I am trying to secure medical removal for my clients. When I make this request, I sometimes run into this objection from the agency: we cannot medically remove your client, as he has yet to request a reasonable accommodation. Typically, I find this response to be more of a delay tactic rather than a substantive reason for refusal to issue a medical removal.
As such and in response, I now can point to a case stating specifically that an employee can, and should, be medically removed if medical evidence proves he can no longer perform the essential functions of his job, even if he never requested reasonable accommodations. Of course, requesting an accommodation is often advisable and usually a good idea, but under no circumstances is it a requirement prior to being medically removed.
Unfortunately for the claimant in this case, he received neither his job back nor monetary damages, but I hope he is aware that he has essentially guaranteed himself a Federal Disability Retirement approval by receiving the medical removal.
If you find yourself in a similar situation or need legal representation to secure medical removal and FDR benefits please, contact me today:
By Peter Casciano, Esq.