Linking Employee Relations and Retirement

Uploaded by USOPM on 15.12.2011

- Good afternoon, everyone.
My name is Ana Mazzi and on behalf of
OPM Center for Workforce Relations
and Accountability Policy,
I want to welcome you to today's
Employee and Labor Relations Forum
on linking employee relations and retirement.
Our speakers today will discuss primarily disability
and discontinued service retirement and how they link to
employee relations issues that you may handle
when you're advising your managers.
I want to encourage you all...
We've got two speakers
with a great wealth of experience between them.
We've got Angela Bolduc here, who is the Chief of
Employee and Labor Relations and Work-life services
at the Nuclear Regulatory Commission.
I got that right. - That's three times best.
- And I didn't say "nucular."
And previously she served as OPM's Chief of
the Appeals branch in our disability retirement division,
so she's got over 25 years of experience
in employee and labor relations as well as retirement issues.
And we also have joining her Carol Cook from OPM.
She currently is our Program Manager of
the Disability Reconsideration and Appeals Group
at OPM Center for Retirement and Insurance Services.
Sorry, that was just too long a title for me to memorize.
So, as you can tell, between the two of them
they've got a great wealth of experience
and I encourage you all to make the most of this forum today
and ask questions, actively engage the speakers,
that's what they're looking for.
For our webcast viewers out there
who are joining us from around the country,
you can send your questions in to,
and we will try to get your questions read to the speakers
and get answers for you.
So, everyone, please join me in welcoming Angela and Carol.
I'm gonna turn it over to them.
they've got a lot of great information
to share with you today.
- Thanks.
- Good afternoon. I'm glad to be here.
Wish it wasn't such a nice day here in D.C.
since we don't get too many of them,
but we'll still be early enough, we can go outside
and enjoy the day when we're done.
I'm Angela Bolduc, I'm glad to be here with you.
I do work at NRC right now.
I've done a couple of stints here at OPM
previously in my career,
so I know some of the folks here
and I'm glad to be here to talk about
employee relations and retirement issues.
Contrary to popular belief, there is a linkage there
that is very important, one that I wasn't aware of
when I was just doing HR initially,
and became much more aware of
when I moved over to the retirement area.
One of the fascinating parts of employee relations to me is
the fact that as an employee relations professional,
you really do have to have a good deal of knowledge about
a variety of different issues, because they do impact.
And a variety of different things come up.
If I could impart one word of wisdom, I would say,
if you have a retirement counselor in your agency,
you need to get to know them,
and you should know them pretty well.
Because when there are issues that come up,
you need to able to go to them and ask them questions.
If you're out in the field
and you don't have a retirement counselor nearby,
find your agency's retirement counselor
and make sure you establish a relationship with him or her,
or in the alternative, find a peer that you can
call and get in touch with if you have any questions.
Lots of different issues come up
that you're not gonna know the right answer to.
Weird situations that we deal with everyday
in the employee relations field, and you just need someone
you can talk to and bounce ideas off of and get some information.
I would also say this,
OPM has a wealth of information on their website.
The retirement folks have done a great job of putting together
information out there for folks to access.
And go to their website, read their brochures,
print the things off that you need to for your knowledge,
all the information is there.
If you have access to various publications,
there is also a wealth of information out there
through your subscriptions, through things like cyberFEDS,
or just through the weekly
and the monthly newsletters out there.
You can learn this information
and you can pass this information on to your folks
in your organizations.
So, it's out there, use it.
Don't think you're going to become an expert in everything,
but find those folks who can help you
when you need the information.
As Ana mentioned,
we're gonna basically talk about disability retirement
and discontinued service retirement.
But we wanted to start by just...
Hopefully we can get this thing to work.
Which button do we have?
- Right side. - Right side, okay, good.
Now that we've figured that out,
I just mentioned that
there are a variety of different types of retirement.
It's not just you have your optional retirement.
We've got up here on the screen the different types.
We'll focus on disability and discontinued service.
But it's a good idea to make sure you know
what the various types are and what the requirements are
for each of them.
Okay. Disability retirement.
Okay, it's an employee benefit.
It's intended only for those employees
who are unable to complete a normal career
due to a disease or injury, and who meet
all of the statutory and regulatory requirements.
It's not to be used in place of an adverse action.
It's not be used as a method of downsizing.
It's not to be used for just rewarding an employee
who no longer wants to work.
Those are all inappropriate uses of disability retirement.
There are methods to downsize your agency appropriately
and to deal with people who are problems.
It's not to say that if an employee who you're dealing with
is undergoing a performance or a conduct problem,
they can at the same time file for disability retirement.
But the two actions are not mutually exclusive.
They can both be going on at the same time
and in fact, if someone files for disability retirement
during the middle of a conduct or performance action,
you should continue with that conduct or performance action.
And you should not stop that action
just because someone has filed for disability retirement.
In fact, you may lose your adverse action
or your performance-based action if you stop
while that disability retirement application is pending.
And you may then be stuck with this employee later on if OPM,
who is the only agency who can make a determination
on disability retirement applications,
decides that that person does not qualify
for disability retirement.
We will talk about settlement actions a little bit later,
but that will be an important aspect
of our discussion this afternoon.
But, Carol...
- I'm going to add something here.
Sometimes we do receive applications from individuals
who have waited to file their disability application
because they are busy with their adverse action.
They don't want their supervisor or their manager to know
that there's some kind of medical condition,
or, you know, they are very very self-conscious about it,
they want to keep it private.
And in your capacity, you can help facilitate
that action if it comes up or if they mention
that they think they might be eligible
for the disability retirement.
You wanna get them connected to the retirement counselor,
the right people, so they can file for that
and that can go ahead while you are going through the actions.
- It's been my experience that sometimes if you have someone
who obviously has a medical condition,
especially if it's a psychiatric condition,
they may have a reluctance to file for disability retirement.
If you proceed with the adverse action,
or the performance-based action,
a lot of times it's a performance-based action,
that will make the employee have to make a choice
as to what they want.
And they may not be nice choices they wanna make,
but sometimes you have to back someone into a corner
so that they can get to the place they need to be.
So, you know, you can
as the employee relations professional help that process
by getting the manager to understand
that sometimes trying to be nice to this person
who has a medical condition is not gonna help them in the end.
They're gonna have an unproductive employee
who can't perform the job,
who has no options, literally.
So, it really will behoove you as we move through this
and we talk about different things to understand
how you can help the process by doing your job
as an ER specialist to try to facilitate
the retirement situation.
Okay, just gonna mention briefly
the statutory and regulatory provisions here.
This is just to give you the information
as to where you can find this.
We're not gonna go into any detail.
But it's all right there and, you know,
if you need information on what the requirements are,
it's pretty well spelled out pretty easily.
We also have to mention the other pertinent laws here,
the Rehab Act and the Americans with Disabilities Act
and the amendments.
They will come into play in terms of
meeting the requirements for disability retirement.
Okay. As I mentioned, OPM independently adjudicates
all applications for disability retirement.
They are the only ones who can make that decision.
An agency cannot and should not guarantee anyone
that they will be approved for disability retirement.
And while we're jumping around a little bit here,
this comes up a lot in settlement discussions,
where, you know, you have an adverse action
or you are before the MSPB
or the EEOC on a discrimination claim.
And the judge wants you as the agency to guarantee
that they will get disability retirement.
Unfortunately, sometimes you have to educate the judge
that you cannot do that.
OPM makes that decision, it's an independent decision.
What you can guarantee is that you'll help them
put the application package together,
that you'll forward it in a timely manner,
that you'll communicate with them as necessary.
But you can't make any guarantees as to approval
or as to the amount of annuity that they will receive
or as to whether or not they will continue to receive
that for the rest of their life.
Because those are all the independent
determinations for OPM.
You have an obligation as the agency
to forward any application that you do receive to OPM,
whether that's a complete package or not.
Agencies have a tendency
and the agency I'm at is no exception,
to wanna hold the package indefinitely until they get
every piece of information.
Forward the package, give the employee an opportunity
to provide all the information fairly quickly.
But if they stall, forward what you have,
OPM will then look at it and whatever is missing,
they'll go back to the employee.
Let OPM be the bad guy for a change instead of you guys,
instead of the employing agency.
- I would like to add to that is if we do get an
incomplete application, the first thing that happens
when it's received is that we screen all the applications
for disability retirement and see if we have all the forms
that are needed, that the forms are completed and signed,
that we have medical documentation.
If we don't have those items, we will go directly
back to the applicant and it's the applicant's responsibility
to make sure that we get them.
And that includes supervisor's statement.
If that's missing, we ask the applicant
to get the supervisor's statement
and anything else that's in the case file.
So chances are... Not in the case file.
So chances are you could have them coming back
to you complaining, "But you sent my application
forward and it wasn't complete."
And once again you go to the drawing board
and explain you need to submit additional documentation.
- And there are two forms that the agency
is required to provide.
The supervisor's statement and a statement dealing with
accommodation and reassignment and what you've done there.
The agency has an obligation to provide that information
whether or not the employee is still on the rolls.
As we will note, the employee has up to a year
after separation to file an application
for disability retirement.
If they're still on the rolls, or they've been separated
within 31 days, they're supposed to be file
that application through the agency.
If they have been separated for more than 31 days,
they should be filing it directly with OPM.
If they file it with OPM, you're gonna get, you know,
request back to do the supervisor's statement
and the accommodation reassignment form.
This sometimes can present a problem.
If it's been ten months and you're a really good agency,
you've taken that OPF and you've sent it off to Saint Louis.
Or honestly, I don't know what you do with e-OPFs
because we haven't gone e-OPF yet, so
we're getting ready to do that.
But the hard copy goes to Saint Louis,
so you may not have the information available.
Chances are, in your operating HR office,
even if you've gone to shared services somehow,
you're gonna have a file dealing with that individual.
Very few cases you're not gonna have some kind of conduct
or performance action or some other interaction
where you don't have a case file.
Generally that's gonna give you the information you need
to complete the supervisor's statement
and the accommodation reassignment form.
You're gonna need to do that, even if the person's separated.
So if you have some inkling that the person might file
for disability retirement, you might wanna make sure
that you have enough information
or talk with your retirement counselor to make sure
they have enough information
when the person separates to do that.
A question sometimes comes up like
supervisor is not here anymore.
They've left the agency or they've retired,
they've gone somewhere else, we can't find them.
Get someone else in the chain of command.
Go to the second level, the third level, whatever it is,
you generally can get the information together
to provide that, to provide those information,
that information.
- In the supervisor's statement itself,
it this three distinct parts.
It asks whether or not their last performance review
was fully successful.
It asks about their attendance record before they separated,
and it also asks about their behavior on the job.
So even if the supervisor is not available,
usually those records are available somewhere
you know, concerning attendance
in your time and attendance system.
Concerning their performance appraisal,
usually is managed by HR somewhere
and if there is a behavioral problem,
I think that your office would probably be
the most aware of anything going on.
- Right, the only times I've ever had a real problem
with this is, you know, you get someone
who ten years after they've separated,
fifteen years after they've separated,
come back and say, I'm gonna file
and I'm gonna claim a waiver of the one year requirement
for filing because I was mentally incompetent
during the last 15 years
and that's the only grounds for a waiver.
And there may, you may find it difficult to find any records.
Especially, you know, especially if you have a lot of turnover
in your offices as is usually the case.
Your systems of records, you're not gonna keep files
for that long, so that's been my only,
the only time when I've run into a problem.
Generally you can put together enough information,
but you are gonna have to convince your managers
that they have to fill out these forms.
Now accommodation reassignment forms
a lot of times are filled out either in the HR office
or your civil rights office.
Because it's usually done by whoever is dealing
with your reasonable accommodation
and those kinds of requests.
So, in fact at my agency I sign off on those,
so those aren't an issue.
It's really more the supervisor statement that sometimes
comes up as a problem.
Thirdly, the agency has an obligation
to continue to take any appropriate action against
the employee as I mentioned while this is pending.
That means, you know, running your whiff,
taking your conduct-based action,
taking your performance-based action,
continuing to proceed on.
The fact that they filed
disability retirement application
does not preclude an agency
from continuing on with an action.
Some employees actually think out there,
that if I file an application for disability,
that means you can't remove me.
Just like they think if I file a discrimination complaint,
you can't remove me.
Not true.
You should proceed with your action.
It may mean that you actually end up with multiple appeals,
because if you removed a person and they've appealed it,
you could have that appeal
if they're denied disability retirement,
they can appeal that action,
but that action is between OPM and the employee.
But the agency maybe peripherally involved there.
So there may be multiple things going on at once,
but one does not preclude the other.
- The other thing to keep in mind is when someone files
a disability application, any kind of adverse action
activity going on is also supposed to be submitted
as part of the application.
- Right, you should be providing whatever information
you have to OPM.
If in doubt, provide it.
If they don't need it, they'll throw it away.
But, you know, my experience has always been
the more information you provide to them the better.
Okay, let's talk a little bit about
the criteria for entitlement for disability retirement.
You will see a list here of all the criteria.
We are gonna through these quickly one at a time.
All of these need to be met for someone to be entitled
to disability retirement.
It's not enough to have one or two of them,
it's not, we can pick a few and if we get the majority
it's enough, it really is all of them in order to be entitled.
- And it's also important to note that the criteria
is written in the law and so that's what it's based on
and you will notice it's mainly an administrative decision.
It's a decision where we go through and we make sure
that each of these criteria are met.
- It didn't go.
- Hold it up.
- There we go, okay.
FERS is pretty simple.
Minimum length of service, it's different for those under
the old Civil Service Retirement System and those under FERS.
For CSRS employees, it's five years of service,
for FERS it's only 18 months.
- Okay, has to be creditable civilian service.
- Okay, any questions on that?
Carol is here, she can answer those.
- Okay, that would be an easy one if you wanna ask it now.
- Next, there has to be a medical condition, okay.
Some kind of health impairment resulting
from disease or injury, it can be a psychiatric disease.
It doesn't have to occur on the job.
Unlike an OWCP claim, this can occur on or off the job.
It doesn't have to be a total impairment,
it can be a partial impairment.
So, someone unlike social security determinations,
where they have to show that they can't work at all
for disability retirement,
they have to show that they can't perform one or more
of the critical elements of their position.
So there is differences here and what you're gonna find is,
as you're dealing with different aspects dealing with retirement
and all different kinds of benefits,
they don't all add up together.
Remember that most of these things were established
through laws passed by Congress, different Congresses
at difference points of time
with probably different political agendas.
So it's kind of like having a puzzle,
but you have different pieces, so you're trying to put
a puzzle together but you discover you have pieces
from about ten different puzzles and it all doesn't fit.
So someone might get a benefit, you know, under one set of laws,
but they may not be entitled under another set of laws.
So it's very common for someone to be approved for OWCP
but not for disability retirement or vice versa.
So one does not guarantee the other, okay.
The medical condition has to be demonstrated generally
by objective medical evidence.
Okay, sometimes however, this is not always possible.
And, well, I think in most instances you are required
to come up with objective medical evidence.
There have been some cases that have indicated that,
that is not always true in every kind of situation,
especially with psychiatric illness.
And that the board has said
that if there is medical evidence to support,
even if it's subjective in nature
of that underlying condition that the person has met
their burden approved for disability retirement.
I don't know if you wanna jump in there.
- Certainly that is the case, but it's not common.
We will look for the objective medical evidence first.
And we will exhaust all avenues to make sure that
we do have objective medical evidence.
If we cannot find it and they submit
subjective evidence in certain instances,
we will consider it and if it substantiates the claim,
it will get approved.
- Now it comes up often times that, you know, people say,
well, you know,
how am I supposed to get this information.
You know, I don't have any money,
I'm hurt, I'm out of work,
I don't have any money to get this information,
because the burden of proof is on the individual
to provide the information.
And generally the agency's not gonna provide any kind of
medical evidence unless they have it in their records.
They're not gonna pay for medical treatment
or medical visits to get the evidence.
How do I get this? Where am I gonna get it from?
My doctor's not gonna fill out the forms,
so they are gonna charge me to fill out the forms.
A lot of times people will have their records,
a copy of them hopefully.
If they don't, they may have to go back to the doctor
and just say, "Can I have a copy of all my medical records?"
And submit the entire package to OPM.
Let them choose, let them go through it
and make the determination as to what's relevant
and what's not relevant.
You know, that is, you know, something I generally would
recommend to someone, if they can't get their doctor
to fill out the actual form for disability retirement
that the employee gives them.
- And honestly, we are looking for
all kinds of medical documentation.
Generally someone who is going to apply for
a disability retirement has been going to the doctor.
They have conditions that have been diagnosed
and so there are records available.
We are looking for things such as office notes,
office visit notes, anytime someone goes to the doctor
they make a record of that visit.
We are looking for that.
We are looking for summaries of tests,
or summaries of x-rays, summaries of hospital visits.
Any kind of medical documentation
on a doctor's letterhead from that physician
that will assist us in making the decision.
It's also important to note that we will be
looking at those conditions that the individual lists
on their disability application.
So that if they have more than one condition
and they only list one of those conditions
on the 3112-A which is the applicant's statement,
we will only be looking at evidence
related to that condition.
So it's important that they understand that
we will only be looking at the medical documentation
for those things, we are looking for conditions
that keeps them from doing their job.
- Now if you do happen to have medical evidence
in your agency's records, you have a health center,
you have some kind of system that, you know,
would give you a medical record and the employee wants
to use some of that information, you certainly can provide that.
Depending on the nature of the job,
you might have some extensive know...
You might have some extensive documentation.
If there are physical requirements for the job
and say for example you have to do a regular health exam,
a physical for that person.
So you may have some agency records
but in a lot of instances, you are gonna have
little or no information.
Most agencies don't provide substantial medical treatment.
I'm not even sure how many agencies actually provide
even more than, you know,
an occasional nurse at their agencies anymore.
I happen to work at one of the few
that does have a health center,
that we have staffed on a regular basis.
I only know that because I have responsibility for it.
And we actually provide physicals
for our employees over 40.
So we have records like that and we can go and try
to get some information.
But if that information isn't available,
the employee is gonna be responsible
for making sure they get that information.
- The application for FERS disability and it requires
individual to also apply for social security benefits.
And often or on occasion, social security will
have that individual go for checkups etcetera.
And we will accept that documentation
and we often tell people that have not submitted
sufficient documentation, we ask them if they have the records
that were submitted to social security,
or the records that social security has on file
and they can get them, they can get them for us.
And that's a good thing.
That way we're all looking at the same documents too.
- The condition has to arise when the person is actually
employed by the Federal Government.
The exception here is if it's a pre-existing disease,
they have to be able to show that it's substantially worsened
during the period of employment.
Or if it's a progressive disease,
they have to show that they were able to perform the job
when they were hired, but it's gotten worse
and they can no longer do
the critical elements of the position, okay.
Interesting case I was looking out recently
where the person tried to claim a medical condition
for the time after which they had separated from service,
but within the one year after.
And they filed for disability retirement.
They had actually appealed that all the way through
to the full board and the board ruled that they were not
entitled to disability retirement because the condition
arose after they separated from service.
So they have to be able to show that this occurred
while they were working for the Federal Government, okay.
- And once again, just to emphasize,
if it was pre-existing we need to really have proof
why they could be hired, why they could do the job
and now they can't do the job anymore.
What occurred that made this
condition keep them from doing their job?
And this happens a lot with FERS applications,
in the sense that they only have to work for 18 months
or be on the rolls for 18 months and if we see that
there is a considerable amount of sick leave, then we have to
take a closer look at that to see whether or not
that really, that condition was pre-existing.
- Okay, any questions?
- No, okay. - There is a question.
- I have a question, although it is related to
disability retirement,
it also a little bit includes the payroll part.
- I think they need to give you a mic
so the folks on the webcast can hear.
- My question is at the time when the agency is supposed
to send all the paperwork to OPM,
are we supposed to send it directly to OPM?
- The question was where does the paperwork go
when the agency has it prepared to send to OPM.
Actually on the application form there is the address usually
the retirement counselor
at the personnel office will send it to Payroll,
if there is a servicing office for HR,
the HR office sends it to the service center
and they send it to Payroll.
Payroll has to add some information
before it comes to OPM.
They send it to our record center in Pennsylvania.
And at that point and a claim number is assigned
and then it's sent directly to our disability branch
where the decision is made.
- And does the agency have some kind of responsibility
in working up medical records from Payroll?
I mean, are they putting it in a blue envelope
or anything to that effect, or we're sending it out...
- Whatever your agency's protocol is.
- It's a good question, the question is it deals with
the medical information and when you're sending it
forward to your payroll office, whether or not you have an
an obligation, as you're referring to privacy,
the Privacy Act, to would you block that information off.
I've never had that question asked before.
I think it's a great question and my recommendation would be
that you would block it off.
Because you want to limit who can see that information.
Now, you know, in some agencies all those folks are together
and they're in one location and it's not a big deal
because you can give the various people
just the forms they need to have.
But in a lot of agencies, especially today,
or if you're out in the field office, it's gonna be different.
So I would say the medical information
should be put in a separate envelope,
it should be probably marked confidential.
[Alarm blaring]
Oh, you got to be kidding.
There's a fire alarm going off up here.
So, Sharon, do we continue or do we leave?
[Indistinct dialogue]
- Okay. - Okay.
- We're gonna continue? Okay. - Okay.
- Okay. If however the lights go dead...
- You can scream and jump up.
- Yeah, you know why.
But I would say that that you should protect
the privacy of the individual involved,
you should check in your agency to see...
- We have to... - We have to stop?
Okay, I guess we have to stop and we have to leave.
More later.
- They have had situations arise where an employee
who was pursuing appeals of adverse actions is also pursuing
a disability retirement application with OPM.
And essentially refuses to provide
the SF-3112A to the agency, but expects the agency
to complete and release the agency portions of the form.
This leads to a standoff.
Do you have any advice
for agencies confronted with such a situation
as to how to address the issue.
Is the agency on firm ground to refuse to provide
the supervisor statement and agency certification
without having received a copy of the SF-3112A?
It raises concerns regarding later claims against the agency
for disclosing medical or personal information
without consent.
- And we've talked to people, you know,
who call in and say that their supervisor won't do it
or they don't want to have their supervisor know
what's going on in their personal life
for any number of reasons.
And certainly what we recommend to them is make sure
that the agency, the supervisor gets the supervisor's form
and that the agency counselor gets the remaining form
so that even if they do not have the "A" form
or the medical documentation, they can at least submit
that part of the form.
We have gotten applications in the past where the supervisor
has said, "We didn't know that
there was any kind of medical condition."
Or "This person always comes to work
and we didn't know they were sick."
But we do need all those forms and whatever they can do
to get those forms completed.
Now, Angela,
from the ER perspective has something to tell.
- Yeah, what I was saying is this.
From an agency perspective, I would tell the supervisor
to fill out the form as best they could.
I would not refuse to do so.
I would just say, you know,
certainly, you know, people get hung up on the fact that
there are little boxes on these forms.
You're not stuck with the little boxes, write something out,
say, you know, "We're filling this out
"to the best of our knowledge and best of our ability.
"We don't have the applicant's statement of disability
"in front of us.
This is what we can tell you."
And provide whatever information you can.
You've then filled your, fulfilled your obligation
to complete that statement.
And you don't get into the battle of,
you didn't do this for me.
And especially if you have other situations going on
with an adverse action,
you don't want this to muddy the waters.
So complete it to the best of your knowledge, put it,
you know, written statement, fill in the boxes
as best as you can and send it off to OPM.
Or give it back to the, give it back to the individual.
However, you know, however depending on
your situation you need to process it.
But don't refuse to do it.
If it's in a situation where you didn't know
about a medical condition, be honest.
We don't know he has a medical condition,
he comes to work everyday, he came to work everyday
until the day we removed him.
Because he, you know, was looking at porno all day
or, you know, pilfered money or whatever it is, you know.
So, you know, just be truthful and provide...
I would then also provide copies of the adverse action,
the proposal and the decision letter and the 50,
showing that he was removed.
Because that's all relevant to all those determinations
and there's nothing that precludes you from
providing that information to OPM.
- The same is true of the accommodation statement.
If the accommodations officer said,
"We did not provide another position
because we had no knowledge that we needed to."
- Right.
- You know, that's part of the application,
we need to know that.
- And again, you know, if the concern is,
we can't answer those specific questions in that specific way
because of the situation,
I would just write out what you need to tell OPM.
Say, "We've answered this to the best of our ability
"but we can't provide you X, Y or Z,
because we had no knowledge of this," and sign the application.
You know, make sure you have a phone number
that's on there in case they have any questions
and send it in.
You've fulfilled your agency's obligations.
You don't get into, they didn't do
what I asked them to and therefore
I didn't get my disability retirement,
now they're just out to get me.
And go back to your other litigation.
- You might even have some people who come to you
and are honest with you, but don't want their supervisor
to see anything or to fill anything out
or they're concerned because the adverse action
is going to be sent along with their retirement case.
That adverse action is considered but it,
you know, it could be considered depending on the situation.
It could be the thing that causes their application
to be approved rather than disapproved.
Depending on the situation, if the person really is sick
and they didn't tell anyone at their agency,
and we can tell that that sickness kept them
from doing their job.
Certainly the adverse action, we can even see the reason
for it because that person didn't say
why they were not coming to work for the past six months.
But we can see the reason why in their application.
- Okay, we're gonna go on and talk about the other aspects
of the application process.
Let's move on to talk about deficiency in service.
This is one of the key aspects of the application process.
In order to be approved for disability retirement
an individual has to show
that they have a deficiency in service.
That means they have to show that they have
a performance issue, they can't perform one or more
critical duties of, they can't perform one and more
of the critical elements of their position
in a satisfactory manner, okay.
What you run into from an ER perspective
is the sympathetic supervisor here.
You got someone who's sick, they can't come to work,
the supervisor feels sorry for him,
so they give him an outstanding rating.
Well, probably they're still coming to work but, you know,
they're not doing anything, I see this all the time.
They're not doing anything because they have
some kind of medical condition, but they've been around
a long time, but not quite enough for regular retirement.
So we're gonna give them a good performance review.
You're not helping them when it comes down
to disability retirement.
You need to be accurate in your assessment
and you need to get folks to understand that
they are potentially hurting this individual down the road
if they need to file for disability retirement,
they choose to do so.
So they have to show they have a performance deficiency
or conduct deficiency
that's caused by the medical situation.
Or an attendance problem.
They've stopped coming to work
because they are sick, they are in the hospital,
they're comatose and in bed, you know,
they can't come to work.
Or if they can't show that they have service deficiency,
they have to show a medically warranted restriction...
All right, we'll go to the next slides
so you can see this.
From performing some of these essential duties of the position
or a medically warranted restriction from the workplace
based on sudden incapacitation, being at work might create
a sudden incapacitation.
A further health impairment caused by working
or one of our favorites, in the news lately,
transmission of a communicable disease.
And I guess have you gotten the question yet,
is Swine Flu considered?
- Not that I know, have we gotten any questions? We did?
Oh, oh, that's right. Well, certainly, well.
- Yeah. - We haven't heard yet.
- So the person has to show one of these.
Not all of them but one of them, okay.
And that's where really the supervisor's statement
comes in, because it really talks about
what documentation do you have to show that one of these exist.
They ask about the performance,
they ask about the last performance appraisal.
And you're supposed to attach the last performance appraisal.
They ask about whether or not the person's gotten
a within grade increase since the last
performance appraisal, or any rewards.
They ask about their attendance and you have to provide
their attendance record, you know, the hours of leave.
They ask about conduct and if there are any conduct actions
you're supposed to attach up.
So those are the kinds of issues you need to work with closer
with your supervisor.
And what I strongly suggest is that you make those connections
with your retirement counselors, so they know if they get in
one of these requests they should be working with you
to make sure the information on that supervisor statement
matches the agency's records.
And the agency I work in now,
the agency I worked at previously,
I always made sure that if those things came in
or if they had an inkling that we were gonna get
a disability retirement application,
give us a heads up, we'll work with the supervisor
to make sure that supervisory statement is complete
and has all of the information.
And that information makes sense.
I looked at an application last week
that came in from a supervisor.
Supervisor checked, is the employee's performance
unacceptable, they had checked yes.
Last performance rating, excellent.
There's a little bit of a disconnect there.
So those are the kinds of things that when it gets to OPM,
they may question what's going on
and could hold up the application.
So if you can take a look at those and make sure
those are corrected before they go forward
and it makes sense.
I'm not asking you to make something up,
but just make sure it's correct.
That will help speed the processing get this through.
- In addition to the items that Angela listed,
we also request position description.
We need to see what the person
is expected to do on the job.
And we need to be able to compare
that to their medical condition.
And if we don't know what's in their position,
we can't really do that comparison, it's primary.
- They have to be retiring, they have to be filing this
based on their position of record.
So whatever, you know, whatever position they're in,
that's what they're filing from.
So it brings up a question of, you know.
We'll get into to placement again but, you know,
sometimes say, "Well, you know, we may be able to have
Joe do something else."
You don't want to reassign Joe unless you know
Joe is gonna be able to do that job.
Because if you reassign Joe and then he fails,
you basically are starting the process over, okay.
So you have to be able to show that they have
the service deficiency based on the position of record, okay.
They also have to show
that there's a nexus between the medical...
The medical condition and the service deficiency.
In other words, the medical condition has caused
the service deficiency, not the service deficiency
has caused the medical condition.
Simple examples, someone who is comatose
has this service deficiency if they can't come to work,
in most jobs.
I'm sure there is a few jobs you probably can do when, you know.
None of the ones we have, but, you know.
But that's just a very simple, you know, example.
Someone's in a coma, they can no longer come to work,
that creates the service deficiency of attendance.
Okay, also a performance one
because, you know, they're basically not performing.
The opposite, someone has a performance problem
and all you ER people have experiences if you've been
in the field for any period of time.
Person having a performance problem all of the sudden
is under a lot of stress and has a stress problem.
And is complaining that they're under too much stress.
Reverse nexus, okay.
The performance problem caused the medical condition,
so they can't show that they have a nexus here
sufficient to get disability retirement.
My favorite, my favorite case was the guy,
and this happened while I was in disability,
who had been jailed for kickbacks.
While a federal employee, and he was filing a claim
because he was suffering from stress
due to fact that he was in jail.
For real.
Obviously, you know, we denied that claim.
So you have to look at the nexus,
you know, that's not to say that you should say
someone can't file.
Because remember, you don't have the, as the agency,
you don't have the authority to say
someone's not gonna get approved.
But you should point out to OPM what actually happened here.
You know, we had a performance issue with this person,
we started, they claim now that they're under a lot of stress.
I would be under stress too if I was being fired.
Okay, anything else to add on nexus?
- No, because it leads right into Duration and...
- Okay, Duration.
Okay, Duration, this is not a short term disability program.
There is no such creature in the Federal Government.
It is a long term disability program.
So you have to be able to show that the duration
is expected to be for more than one year.
Now that is measured...
Which is different I believe than it used to be.
- It's measured from...
- From the date the application is filed.
Which I believe once upon a time it was measured differently.
Back in my days or at least, you know.
- As far as I know it's valid. - Okay.
- Currently it's the date the application is filed.
Whether through at the agency or at OPM.
- So one year from that period of time.
So if it's a short-term situation,
and they're gonna be better in three months,
they're not gonna meet the requirements here.
- And that's where the stress issue comes in as well.
Very often we will get medical documentation from a physician
saying if they were to leave this job,
they would no longer be incapacitated.
And while that tells us their condition would last a year
if we allow them to leave their job as a disability retiree.
- Right and that maybe where you get into
the accommodation issues in some respects,
because you can accommodate them by moving them to a new job.
- True. - Or you may be able to...
- And that also ties in with the Swine Flu because we were,
just sort of discussing behind the scenes over here.
Swine Flu right now wouldn't be considered to last one year.
- Well, maybe the complications.
- They could, yeah, and we may see the fallout
of that in the future.
- Yeah, no, I'm joking, okay.
So duration is measured one year
from the date the application is filed.
Couple of things to keep in mind here, your refusal or failure
to follow prescribed medical treatment can result
in your being denied disability retirement.
Okay, but that has some exceptions.
If you're refusing the treatment for religious reasons,
that's acceptable.
And there's no requirement that you have surgery
or other invasive medical treatment
in order to try to get well.
That comes up a lot in the back situation,
back problems where surgery might be recommended
but the person may say no and generally,
you know, the back surgery is kind of an iffy proposition
is my understanding, so.
- Where we see that most often is if people
are prescribed medicines and they don't take them,
if they're prescribed therapy and they don't follow up
on the therapy.
If they are supposed to go back to their doctor
every two months and they don't go back
to their doctor for a year.
These are things that we need to see that these people
have followed up and have done what's required.
- And this is another instance where proceeding
with the adverse action sometimes will be beneficial
to getting the person to where they need to be.
You're dealing with someone who may have
a psychiatric condition.
They take the meds, they feel better,
so therefore they stop taking the meds.
So sometimes, you know, you're gonna have
to make a hard choice.
And you may have to start down that adverse action road
and that might get them to that point
where they make the choice they need to make
in order to get to the place where they need to be.
They may, legitimately may not be able to work anymore.
But you don't want to put them out on the street,
because then they'll have nothing
and that's generally the case.
A lot of times in those situations, family has been,
you know, removed from the situation because
they've, you know, they've done something that offends them.
And it's virtually impossible to get anyone
to declare, award or state or under any kind of
forced medical treatment.
So sometimes using the adverse action process to say that,
you know, you no longer come in to work or your pattern
of attendance is too erratic to do your job.
Or your performance is no longer acceptable
in doing a performance action, it might get them
to the point where one, they'll either accept
the treatment and hopefully stay with it,
or they'll decide that they can no longer perform the job
and they'll file for disability.
I've seen that happen in numerous situations,
especially with folks
who've been very successful in their career.
You know, most of the folks I work with now
in the technical area have masters degrees or PhD's
and that's, you know...
So they've been successful and when they get into
that kind of situation, it's sometimes hard to accept
that they're no longer gonna be successful.
So the ER action can help, you know,
facilitate where the person needs to end up.
But I know sometimes it's hard to convince the supervisor
to go down that road.
But sometimes it's the best possible situation
for the individual, okay.
- I do want to throw in one other condition
that we look at, and this is important.
And especially with back conditions
and skeletal conditions and it's overweight.
We do look if the doctor says to lose weight,
we look for an attempt by that individual
to try to lose weight.
An exercise program, a diet,
something that's documented, we do look for that.
- Okay, any questions on... - Doesn't have to be successful.
- ...Duration, Nexus, anything like that?
Okay, okay. We'll continue, okay.
Okay, Accommodation.
Agency has to show that
they attempted to accommodate this individual.
Couple of important aspects to mention here, okay.
This is separate and apart really from any reasonable
accommodation you really need to do
under the Accommodation Act.
The person might still have a claim
and the fact that they have a claim doesn't impinge
on the disability retirement.
But they should, agencies do have to look
to see if they can accommodate the individual.
And that has to continue through the application period.
So so long as that application is pending with OPM,
this obligation continues.
It doesn't go off your plate just because the person is filed
and the application is pending at OPM.
So it's a continuing obligation by the agency.
You know, as most of you I'm sure know,
know what reasonable accommodation is.
But some adjustment to the job or the work environment
that allows the employee to continue to do
their job successfully.
There's lots of case law or not lots
but there are some case law that says placement
on light duty with,
even if it's expected to continue,
it's not sufficient to say that the person has been
accommodated on a basis to preclude them from getting
disability retirement, okay.
You have to be able to show that the person
was accommodated in their position of record
on their critical duties such that they can continue
to perform that position of record.
You can't put them in a light duty assignment.
That doesn't preclude their ability
to get disability retirement.
That's a little bit different than it was once upon a time.
So if you're simply just giving them light duty
but they can't do their position of record,
they'll still be able to apply for and meet the,
if they meet all the other requirements
to get disability retirement.
- But as an addition to that,
we do need to know that it's light duty,
we do need to know that it is not, you know,
a full-time assignment that will be permanent
that they can, you know,
carry out for the rest of their career.
Otherwise we will read it as an accommodation.
So please, please write that out and tell us on the form.
- And when you're looking at accommodation to, you know,
to their position of record
or placement in,
placement in a job at the same grade.
Okay, not to a lower grade.
If you place him in a lower grade,
you need to make sure that the person understands
that that's gonna constitute basically
a withdrawal for their application.
Okay? Because you're putting them in a new position.
So if you offer as some form of accommodation
we'll put you in this other position,
but it's a lower grade but we'll give you saved pay.
Putting them in that lower graded position is gonna
constitute a withdrawal of the application,
because they're no longer in the position of record
for which they filed for disability retirement.
And OPM recommends that if you do that,
you get the employee to sign something,
a written request, a written statement,
that they understand that that placement constitutes
a waiver of their disability retirement application.
So if you think that, you know, so you have someone
who really wants to continue to work.
You know, some people do, you know.
We've all met the person who feels as though
if they retire in anyway they perform, they're going to die.
You know, they're gonna have nothing else to do
with their life and they want to stay working.
And you can find something else for them to do better
than lower grade.
My suggestion would be this, okay.
To try it as a detail first, see if it's really gonna work.
Try it for, you know, hold everything
that you may have going in the balance for 60 days,
try it out for a little bit and see if it's...
If you think it's gonna work,
then you can make it permanent in nature.
Because again if you reassign them,
that's which all are current application.
If that doesn't work out down the road,
they have to start to process all over again.
And if they start the process all over again,
they have to be able to meet all these requirements
in the new position, not the old position.
So, you know, try that detail bit
and there is nothing in the regs.
I don't think you guys have done anything recently
to say that someone can't file an application
down the road, more than one application.
So they file an application, they're denied by OPM,
they can file another application down the road.
But they have to be able to show
that something different has happened.
Okay, that there's been a marked difference in their
medical condition or something such that
there's a difference from the last time.
- I see some questions in the sense that if somebody...
The questioning look, it's not questions per se.
But if somebody files an application and it's denied,
they can't file the exact same application over again.
Once they've been denied based on that condition
and that position, they cannot refile.
But they can refile again based on a different position
or if that condition has gotten worse
or if they have a different condition.
- Right, yeah, maybe they really couldn't show
they had a different service deficiency.
They really were able to come to work
but now it's gotten such
that they do have a service deficiency
and they're able to show it, okay.
- One simple example would be somebody
who was just diagnosed with cancer
and they can still come to work, it's being treated.
They are not eligible for disability, let's say.
But maybe in a few years things have gotten worse.
They can apply based on that same condition
and possibly could be approved at that point.
- Okay, and that brings up another point
that I want to make sure we make
since we're not gonna have all the time we have.
We thought we are gonna have, but this is important in terms
of the application process itself, okay.
If you have an individual who is terminal who's applying.
You should be tagging those and my understanding
now the process is that through your retirement person
that should be, the application should be faxed directly to OPM.
So that they can begin work on it basically immediately.
- And to even give more specifics than that,
if someone is terminal and by that we mean as expected
to live for less than one year,
go through your retirement counselor.
They can fax the medical portion and the service portion
of the application directly to our office.
They are faxed to the attention of the branch chief
of the Disability Branch
and I will even give you the phone number.
It's 202-606-1686.
We will review that faxed application
and make sure we have everything we need to make
a decision when the application arrives at the agency.
So we don't make the decision until we actually have
the application package, but we have what we need
to do a pre-review of the case.
- And I will just say based on experience
that I've had in a couple of different agencies
that if you tag these things and get them to OPM,
they will turn them over very, very quickly,
they do a great job with that.
- Right now it's what, about a day and half
is the average time for those cases once they arrive.
- So, yes, Ken.
- Carol, what is the typical, and I understand
there is nothing typical, regular disability application
from the time that you...
Someone sends in a complete application
and if you see things...
- Well, currently from the time that the application,
the disability application is received
in our Retirement Operations Center in Boyers, Pennsylvania
to the time that we make a decision.
It is currently 41 days, that's this fiscal year,
that's an average.
We can get them out, you know, in a week
and some cases we need more information,
they take more time, and that could take nine months.
But most of them we get out within that 41 days or less.
The standard for individuals is 90 days or less
and when a case gets to be older than 90 days I'm watching.
And before that the disability branch chief
is watching as well.
Once if they are approved, they immediately are assigned
to our approved disability preparation team
which is in the exact same office,
where they let the agency know that to separate
the individual and to send us a last day of pay
and once we have that last day of pay,
and we know they're not receiving OWCP benefits,
we'll put them into interim pay status.
So at least they have some relief while they're waiting
for their final retirement to be calculated.
And there is another question from the web.
[Indistinct dialogue]
- Okay, if someone's placed...
The question was, what if they were placed
on long-term compensation rolls
because they're injured while at work.
Certainly, if they are separated from the agency,
they should apply for disability retirement within that year
of separation because that's the deadline.
They have one year to apply.
And then at...
- I wasn't finished. - Oh, you weren't done.
- Okay. - Sorry.
- That's okay, the employee was later approved
for a disability retirement and elected to continue
to receive OWCP benefits in lieu
of disability retirement payment.
The employee was later able to return to work
and was offered his or her position, his former position.
The employee declined the position offer
and as a result lost OWCP compensation benefits.
What is the effect on his or her disability retirement?
- Oh, that's a little more complex.
Okay now, and you already covered that they would have
the choice between our benefit and OWCP.
They can switch anytime they want from our benefit
to the OWCP benefit.
If OWCP stops their benefits,
and they were approved for our benefit at the time that OWCP
stops paying them, they can elect to come back
on the rolls with us.
At that time after we put them back on the rolls,
we will ordinarily review their current medical status.
We will ask them to verify whether or not they're employed,
their earnings and we will ask them for an update on
their current medical condition if they're aged,
younger than age 60.
The older than age 60, we won't check their medical status.
And, you know, that's in line with what we do
with the review of medical, the current medical condition
of anyone who's on the disability rolls.
If they go back to work, if they elect that,
if they take that job,
if the position is at the same grade or higher than
the last job that they held,
their disability benefits will be terminated.
If it's at a lower pay, lower grade or different tenure,
they will be treated like a reemployed annuitant.
They would continue to have their disability benefits
and their salary is offset.
- One more question.
Does OPM have a list of approved religious reasons
for not taking medications?
- No, no, it's a case-by-case basis.
- Let's go on, let's talk a little bit about
the application process,
because there are a few things here you need to know about.
Let's go back, generally the employee files
the application and must file the application.
Submission by agencies is very, very rare.
They could only file an application
if the following conditions have been met.
A decision to remove has been issued.
There is a documented nexus between the medical condition
and the reason for removal.
The employee is incapable of filing.
Not just doesn't want to,
but they're actually incapable of filing.
And they have no representative or family member,
immediate family member, who can file on their behalf.
If those conditions are met, then the agency must file
the application on the employee's behalf. Okay?
Once upon a time they tell me, even prior to when I was around
so it was a long time ago.
Agencies could file on an individual's behalf,
but agencies, I know this is hard to believe,
because we all come from agencies
and we've never met people like this.
Agencies abused this privilege
and they would file on behalf of people they didn't like.
So Joe would get in the mail, "Congratulations, you've been
approved for disability retirement."
Joe didn't even know that he had filed for disability retirement.
But it was used as a method to get rid of people
and to remove people that they didn't
want to on the rolls any longer.
So the regulations were changed.
Now it's very, very rare for an agency to file
on behalf of an individual.
Time limits, very important again, okay.
One year from date of separation from service
unless the person can show that they have...
That they were, I'm sorry, I'm getting tongue tied here.
They were medically incompetent either at the time of separation
or became incompetent within that one year frame.
And then they have to file within,
within one year of becoming competent. Okay?
This comes up a fare amount, this is by statute, okay.
OPM can't wave this.
You can agree in a settlement action to wave this requirement
because it's a statutory requirement.
However, if you choose to bring the person back on your rolls,
so that they're back on your rolls,
and within that one year time frame
so that they can file, you may do so.
But you also have to keep in mind,
if you bring them back on your rolls
under the settlement guidance that is on OPM's website,
that you have to pay backpay
and you have to pay for all the benefits
that that employee was otherwise entitled to.
That means you have to pay into the retirement fund,
TSP, life insurance, health insurance
whatever it is that they had.
You can't wave any of those,
you can't do it as a paper exercise,
just to get someone back on that,
within that one year time frame. Okay?
OPM will look at those and they will say no, no, no,
that's not a valid settlement.
If you want to do a settlement and you're quite sure
whether or not what you want to do
or a judge is trying to tell you, you must settle.
I know it doesn't happen that often but occasionally it does.
You know, check with OPM, in the settlement guidance
which you have a copy of, the folks who are here.
For the folks who are doing this by web,
go to the OPM website and you could find it.
There's a contact person.
Call them and talk with them ahead of time
to make sure that what you're going to agree to is correct.
But again you can't wave any of those requirements.
No waiver of backpay, no waiver of any kind of payment
into TSP, life insurance, health insurance,
the retirement fund,
all of those will have to be paid.
So that can be a substantial amount of money for an agency.
And there may be times when an employee doesn't
want that to happen for tax purposes.
So keep that in mind.
So the one year is statutory and cannot be waved.
- The incompetence, also Angela mentioned within one year
of that person regaining competence.
Also if that person is someone acting on behalf
that counts towards their time.
So that they may have been incompetent
but if they have a spouse that acts on their behalf,
a relative, a court appointed guardian, a social worker.
That doesn't, you know, that person is competent.
And so that they cannot claim the incompetence.
They can claim it.
Whether or not we'll approve it we need to look at the records.
- And there's a surprising number of these cases
that come through, so you know it's not something
that doesn't, it happens quite often.
- The other thing to note is most of the cases that
Social Security may approve that we do not approve
deal with this one year application.
Because they can file for social security at any time,
but ours must be within that year.
- Okay, generally the annuity is effective
the first day after the pay status,
after the pay status as an employee terminates
and they have met all the requirements for disability.
This comes into play with your leave sharing
and leave bank situations, okay.
So it's important to remember this.
You have a person who's been out sick for a long time,
they were on your leave bank or your leave sharing
or whatever it is you have
and the person gets some donated leave.
You want to apply that and you want to make sure
whoever is applying it in your agency, whether it's, you know,
someone who's close by
or someone in the shared service center,
is applying back as far as possible because if you have
them apply it to last week and there's six months leave
without pay before that and then they get approved
for disability tomorrow.
The disability starts now, not six months ago.
They've just lost six months, so this can go retroactive
quite a period of time, if they've been on leave
without pay for a long period of time.
So make sure you work with your folks to make sure
that donated leave gets applied as far back as possible.
It's come up too many times where people lose a benefit
and generally again, remember you're talking about a person
who's been out of work for a long time.
So probably their financial situation is not great,
to have to tell them or to have OPM tell them
that well, your agency screwed up and you lost some benefit
and it doesn't start till now.
They're not gonna be terribly happy.
- And we can't tell your payroll office to change it.
We have to ask them to go back to you.
- Right, so, yes.
[Indistinct dialogue]
- Well, certainly the question was whether leave without pay
or AWOL has any effect on ability to retire.
Leave without pay that a person takes,
they can take up to six months of leave without pay
in a calendar year
and get credit for the full year's service.
Once they go over six months of leave without pay,
we stop crediting anything over six months
within each calendar year.
If they're receiving leave without pay
while they're on OWCP rules,
they receive full credit for that time.
They don't receive any credit for AWOL time.
- Now, it won't affect their ability to apply,
but it may affect the calculation of the benefit.
- In their total service.
- In their total service, so.
Okay, let's talk a little bit more about
withdrawal of the application.
If someone's applied for disability, they can withdraw
that application at anytime prior to the date of separation
or approval of the application whichever is later.
Another reason why you want to continue
with your adverse action or your performance action.
You stop your action
because they file for disability retirement.
It's six months later and they decide, "You know what?
"I really don't want to go out on disability retirement.
I'm gonna to withdraw that application."
It's been pending with OPM because they didn't provide
medical documentation or they were denied
and they were in the reconsideration
aspect or something.
They have a right to do that.
If it's a performance action, chances are,
you don't have a performance action anymore.
You're gonna be starting over.
If it's a conduct action, you may be out of luck too
because it may be still up and you may find that
you don't have the information you need,
you may not have the witnesses you need, whatever it is.
Continue with your action.
It's less likely that someone
who's a problem employee is gonna withdraw
their application if you're continuing to remove them.
Okay, so keep that in mind.
And I can remember very vividly
a situation where someone from Hawaii called.
They had had someone who had been out a long,
long time, they hadn't gone forward with the removal.
The person had then filed...
The person had disability retirement application.
Finally, got through the approval process
and just as they were getting ready to separate the person,
the person called and said, "You know what?
"I'm coming back to work tomorrow and I got something
from my doctor saying I can work."
And they would call and say we don't want this person back.
And all we could tell them was sorry,
they have a right to do that.
And you're gonna have to start whatever action it is,
and the person hadn't worked, it was,
I mean, it was in the appeals process.
The disability retirement got approved at that point.
So it had been going on for something like 18 months.
And all we could tell them was you're stuck,
you don't have, you didn't remove the person,
you kept him on your rolls.
You have no action to base this on, they are yours.
Sorry, you know, and they wanted OPM to do something.
So you don't want to stop your action
because they can withdraw.
I think this comes up sometimes too where people will have
a lot of sick leave after they're approved.
And, you know, the agency I believe,
do they have an obligation to let them
run out their sick leaves? - Yes.
- So, they could run out their sick leave
and still conceivably, conceivably, I mean,
they could use their last day of sick leave and come in with
a note saying I can come back to work.
I mean, it's not likely to happen,
but those are the ones your managers are gonna remember.
So you want to make sure
you have all your bases covered there.
If you've got a legitimate adverse action
performance-based action, go through with it.
Unless you have a settlement agreement that says, you know,
they understand that if they're approved,
they're gonna go off the rolls.
I viewed settlement agreements in the past where we agreed
to not take the adverse action,
they have to file for disability retirement.
And there is a provision in there that if they withdraw
the application, they are separated the next day.
And they've waved all their rights.
Or if they're approved, they are separated the next day.
So you can use that as a settlement tool.
But I would do it as a settlement,
not just withdraw your action.
And I would carefully craft that to make sure that you have
provisions in there that state as to
when they're gonna,
they're gonna put in their application,
how long you're gonna give them to put in their application,
make it clear that it has to be a complete application
and cover all the bases for
who they have to notify if they withdraw.
Because you're not gonna get necessarily withdrawal notice
right away from OPM saying so and so, I mean,
has withdrawn their application.
You want to put the burden on the employee
and put that in your settlement agreement.
So that you can keep this thing going
and keep the person in a situation
where they're not gonna be back on your rolls
and you are not gonna to have a manager standing at your door
saying, "They're not coming back here.
"They can work for you,
but they're not working for me anymore."
- There is an exception.
- Of course there is. - There always is.
And that's someone who applied and was approved
based on a mental condition.
We will require medical documentation
and we may deny their request to withdraw
their application in those instances.
- I need to ask a question, Sharon.
What time are we going to?
[Indistinct dialogue]
We only have 10 more minutes?
A little bit. Okay.
Okay, we're gonna try to get through this.
We've lost a little bit.
I'm going to skip a little bit here.
I am going to mention Restoration to earning capacity,
because this comes up again in the adverse action situation.
You'll find someone who doesn't want to apply
for disability retirement because they either feel
they can't live on that benefit
or generally they can't live on that benefit.
Because it's, you know, a lot of instances, especially
FERS people, it's not gonna be that great.
Okay, the fact that someone goes out on
disability retirement, again different than social security,
different than OWCP.
They can work, they can work
in the same job doing the same thing.
But they can work and they can earn up to 80%
of the current rate of their former salary.
And continue to receive their disability retirement benefits.
If they go one penny over that,
they're gonna lose that benefit for at least a period of time.
Okay, so it's something to keep in mind,
if you've got that situation, you want the person probably
to sit down with your retirement counselor
or look at the regulations.
They can for example, you know, you have someone
who's working as an engineer,
they can't perform those duties anymore
because of a condition of some sort,
but they might be able go out and do something else
that maybe doesn't require a full time work or, you know,
less stress or whatever.
So there is the ability to continue to work.
You just have to be careful about the amount of money
you earn in the position you are in.
Okay, I don't know if you want to speak to that at all.
- Certainly the difference would be as if they come back
to work for the Federal Government
in a federal position in which case
I brought up those issues before.
We don't even have to look at their earnings
or their, or wait for them to earn any money.
If they come back to work in a federal position,
we are notified immediately by the retirement,
HR individual and the annuitant.
And we make a decision whether to stop that benefit
as of the first of the month after we find out about
the reemployment or if the pay or grade
is lower than their last job.
We advice the agency to offset that
individual salary by the retirement.
You want to talk about medical recovery?
- I was just gonna skip over medical recovery for now
and if we have time come back, so I want to talk,
but if you want to talk about it, we can.
- Well, since I brought it up, I'll jump into it very quickly.
And that is by law, we can review anybody's medical,
who's a disability annuitant, their medical condition
at any time through the time they turn age 60.
After age 60, we do not review their medical condition.
Currently we determine at the time that we first approve
a disability benefit whether or not we will be calling them up
in the near future and that will probably be one year,
two years or three years, could be more than that.
But we could call them up at any time we want.
And we ask them for information concerning their
current employment and their current medical condition.
If there is a problem we have with these individuals,
is they call us and say,
"But I haven't been to the doctor for four years."
If somebody's retired on disability, we'd assume
that they are going to the doctor all the time.
I mean, certainly there are some people who don't
because, you know, their condition doesn't ever change
and they continue to get their medicine.
But we do require that medical documentation
and it has to be based on the condition
for which their disability was approved.
So that an individual who retired based on
a back condition sends in information about
a stroke that they had a year ago.
We go back to them and we say, no, we need to know
about your back condition.
And they can be dropped, they would be dropped
one year after the date of the medical documentation
that says that they have recovered
and they are given reconsideration rights.
- Okay, let's try to go over some of the other
interrelationships with other actions here
in the time we have left.
OWCP and Social Security, all independent decisions, okay.
All different sets of regulations,
they don't match here, okay.
So approval of one doesn't mean approval of the others.
Okay, obvious differences, OWCP has to be on the job,
disability retirement does not.
So the fact that someone's been approved for OWCP
or social security does not mean
that they're gonna get disability retirement.
Okay, it's a factor that gets looked at and in fact folks
who are FERS employees have to file for social security.
That's a requirement because part of the benefit
is based on social security.
But it is not a determining factor.
If someone's approved for OWCP,
they will have an election to make as to whether
or not they want to get OWCP or disability retirement.
Okay, they're generally gonna select OWCP,
because it's generally more money and it's tax free.
But they need to file for disability retirement
because of that one year time frame for filing.
Okay, this way if they get cut off by OWCP later on
for whatever reason,
they still may be able to collect
the disability retirement benefit.
But if they wait until they're cut off by OWCP,
chances are it's gonna be more than one year later.
And they will have been precluded from filing
for the disability retirement benefit.
- I'm gonna throw something in very quickly.
If someone has been carried on the agencies rolls
for a number of years and they're receiving OWCP benefits
and they haven't been working for let's say
they've been on leave without pay
because they're getting compensation for six years
and then the agency decides, we're going to drop
this person or, you know, stop their employment.
Make sure you notify them and tell them.
Make sure they get their 50
and make sure you keep a record of that somehow.
One way would be to send them a letter
and document it in their OPF.
Because if they filed for,
if they find out three years later
that they were separated from their agency
and they didn't, you know,
they didn't know they were separated,
it's too late to file for that disability benefit.
And that is something that has come up in MSPB cases
recently and causes a lot of grief.
Because sometimes they do get accepted
because they can prove that they did not know
or we're not notified of that separation,
so if you are involved in separating individuals
who have been on OWCP for a long time,
make sure that that's documented.
Because we need to make sure that they know,
that they have that one year time limit
or that they were actually separated.
- Now we have time to finish. Yes, ma'am.
- What happens or are you aware...that way.
When somebody has been on OWCP rolls here,
they go off with a disability
or work related injury, they get all the compensation.
They don't file for disability retirement at anytime.
What are the disadvantages if you know that
person later or just, you know, dies?
Okay. I mean, are there any, what happens
to their retirement, I guess or their family
or if they have a spouse and children?
- Well, it's just as anyone else.
If someone has their retirement contributions in the fund,
the retirement contributions
would be dispersed to the next of kin if they are FERS
and have so many years of service and they have
a surviving spouse, there could be a survivor benefit paid.
If they...
- File for that already, I mean, it just eventual,
somehow it goes to the families, how's that happen?
- Well, they would notify OPM of the death
and they'd have to file an application.
- Okay. - Yeah.
But the question was what if somebody never filed
for benefits from OPM and they later died,
what would happen to the funds
if they were on OWCP the whole time?
- Now, would there be a difference if they had filed
for OWCP and disability retirement but elected OWCP.
Would they be entitled to any additional benefit
by having that disability retirement approval?
Like, you know, survivor...
- If they elected a survivor,
there would be a survivor annuity payable.
If they didn't get, if the survivor didn't elect
an OWCP survivor, if they could get one.
- So there might be some,
it's conceivable there could be some benefits.
Now I think if in doubt,
you know, file for everything you can file for.
You know, I want to talk about adverse actions
'cause there are some things we need to cover here
that I think are important.
There is a requirement under the regulations that if,
that the agency has an affirmative obligation
to provide information about disability retirement.
If the person's being separated due to problems with,
due to the fact that there is a medical condition
that led to the separation,
my recommendation would be that if you have that situation
that you put in your decision letter,
information about disability retirement and the fact
that the person can apply.
In fact, what I have done for many, many years
is to put in there just a quote from the regulations
and it's under 752 and 432, it's in both,
both types of situations, whether it's a conduct-based
or a performance-based action.
Put the regulations in there, tell the person
that the agency has this duty, say that you may be eligible.
And in fact, let them know that they have to file
an application, that OPM would make that decision.
And in fact, what we've done in the agencies
I've worked that, is we actually attach an application package
to the decision letter.
And the reason for doing that is very simple.
If you're dealing with someone who has a medical condition,
especially if it's a psychiatric condition,
they may not be totally capable
of making a decision on their own.
If you give them the package the chances are,
they're taking that package home with a decision letter
to a spouse, a child, a union rep, an attorney,
to someone who can then assist them
in filing that application package.
If that's not there, that person might not do
the right work to get that together.
So it only costs you an application, you know,
get the application, the correct one,
whether it's FERS or CSRS, right, and attach it.
Also put in their, and we always bold this part,
"read this information carefully as there are very specific
"time frames and types of information
"necessary in filing an application
for disability benefits, disability retirement benefits."
If you have a retirement counselor, local,
and you can give them that kind of contact,
I would also put that in there.
That might give them enough information to get them to file.
Okay, so I think that's just very practical advice
to give folks and to help them there.
I want to mention also the interrelationship between
a removal due to physical inability
and disability retirement, because this brings up
one of my favorite cases of all times.
Bruner for the OPM.
Generally the burden is on the individual to provide
the information to support the disability
retirement requests, that they have to show
that they meet all these requirements.
There is a case that changed this a little bit and change...
What happens when an agency removes someone
due to physical inability?
And it dealt with a guy by the name of Bruner
who worked for the VA.
And I remember this case because I was
Chief of the Appeals Branch when it happened
so it was one of our cases.
And basically what the court ruled here is that,
that the fact that the agency has removed the person
for physical inability creates a rebuttable presumption
that the person meets the requirements
for disability retirement.
Now OPM can overcome that presumption
by showing that there is no objective medical evidence
to support the removal.
But if you have the situation where you have someone
who you can remove legitimately due to physical inability
which means you have medical information to support that,
then that is a way to really help the individual.
And a lot of times you'll get the supervisor again,
I don't want to do it, they're down on their luck,
they're hurt, they're injured,
you know, they can't come to work.
You have to use your power of persuasion
which as an ER person you have,
or else you wouldn't be in the business.
To convince the manager that this is really something
you need to do to help the person.
You have to have a decision on that physical inability case.
It can't just be a proposal, it has to be an actual decision.
But if you have the medical to support it,
you can go ahead
and that creates a rebuttable presumption
that the person's entitled to disability.
Again, you got to be very careful
with that agencies have on occasion,
not often, but on occasion, try to abuse that.
Probably more than OPM would like to say.
And they have overcome that rebuttable presumption.
So you can't make this up, but if it's there,
that's the way to help the person
get their disability retirement.
- In those instances, you know,
please, please, please emphasize that we really need
the medical documentation to support that.
Because sometimes individuals will send
that statement from the agency.
Or their SF-50 showing their reason for separation
and that's not sufficient for us.
We really, really need to see the medical documentation
that supports that medical condition
and its impact on their inability to do the job.
- And a good proposal on decision notice will have
sufficient information in there to support that medical evidence
and to show OPM why you did this legitimately.
It is generally from my perspective
while it's hard to write
because you're dealing with an adverse situation,
it is one of the easier letters to write,
because all the information is there for you.
Practical guidance would say that,
if you're writing something like that, while you do it
under the provisions of 752,
it is not considered to be a disciplinary action
and you need to write this letter in such a way
to let this person know that, you know, you're doing this
not because you believe they're a bad person,
but because they're not able to come to work
and you can no longer tolerate their absence
or their inability to perform.
You know, so I would say this is gonna be a letter that
you're gonna write a little bit differently
than the person who you are removing
due to some severe misconduct.
If anyone needs or would like, you know,
if you've never done this and you need a sample,
you can always get in touch with me
and I'll be glad to send you a sample letter.
But I think generally if you write a good letter,
you have the medical documentation right there
and you can provide this with the disability application
package and really help OPM in the process.
We have a question from the web.
- Does OPM consider conflicting arguments
by the employee in multiple forms?
For example, if the employee is pursuing
a disability retirement but is also pursuing a claim
before the EEOC that they were able to perform the job
but were discriminated against because of their disability.
- Ordinarily we wouldn't know
that that claim was before the EEOC at the time.
If it's going on at the same time.
If we know about that, we would review both.
Because certainly in one case they're trying to keep their job
and the other case they're trying to get paid
for not doing, you know, because they can't do their job.
So, we would consider both if we were given
both to review as part of the case file.
- Okay. And how much weight does OPM give
the employee's own statement versus medical documentation?
For example, if the employee claims they could perform
the duties of the position with accommodations
but the documentation indicates they could not.
- Oh, that's...
- That's a little bit, well, it's not unique.
I actually have seen that where the employee...
Again, sometimes you run into these situations
where people don't want to accept the fact
that they have a medical condition
and they're having a lot of trouble,
you know, getting to that point.
You know, my experience has been that they'll probably
give greater weight to the objective medical evidence.
They may come back and ask the employee to explain further
why they believe they can do the job.
But if there's objective medical evidence
that supports the fact that they cannot do it,
I think they're gonna go with that
over the subjective views of the employee.
Now if the employee has lots of documentation to support
that they can do something,
you know, that might be given greater weight but...
- Certainly and I think you might see more of that
in your venue than ours because certainly by the time
they apply for the disability retirement they're giving us
evidence to prove why they should get it
and not why they shouldn't...
- Well, you do find those situations
where every once in awhile there are the exceptions,
but, you know, those are the interesting cases.
- And certainly you see those cases where people have done
an exceptional job their whole life and they were very upset...
You've hit on this before,
they are upset that they can no longer do it.
And this is just totally unacceptable to them
and you see those instances
where they know they have to apply
but they really don't want to get approved
because they really need that full pay check.
And you can see, you know, the struggle they're having
in their application, it's a kind of, you have to,
you don't read into it,
you just look at what evidence is provided.
And so you do read the letter
and you do give that some credence
but the objective evidence is heavier weighted.
- Did we have another question?
- That's very clear that if they raise a medical issue,
we can bring up the discussion on disability retirement.
However, in cases where they do not give us information
but we suspect that there is reason
that the person could qualify.
It's difficult to bring it up because you don't want to be...
You don't want them to accuse you of.
- Yes, you're discriminating against them
because you presume they have a disability.
- Right. Of course.
So is there an approach that
you can suggest to kind of bring it up?
- When that happens and it's, you know,
it happens, you know, on a, not a frequent,
but it's happened on more than one occasion in my career.
We try to look to see if there's some other person
who might be able to talk to them.
A union rep is often the case if you're in a unionized situation.
In fact we have a case right now with someone who,
we're using the union rep
to try to pass along some information.
Sometimes it might be a close friend or a family member,
especially, you know, we have the same situation,
we have a waiver from the person.
So we can talk with their family
and so if you can get that, a medical officer
or someone in your health unit, if you have a health unit.
EAP Counselor is a good one.
If you can get the person to go talk to your EAP Counselor.
EAP Counselor can't share information with you
without a waiver,
but you can share information with the EAP person.
So the EAP person in our agency is happy to work for me.
So we can feed, you know, we try to make sure that
if there is someone we are referring over
and there is that kind of situation, we fully informed,
we have someone on staff plus we have a contractor.
We fully inform all those parties of what's happening,
so that if the person comes in, they have a complete picture
and they can try to help us there.
And that helps sometimes.
So those, you know, I would try to
get a third party because you can't do it.
- Unless you have a generic checklist kind of thing
where you say, you know, in these kinds of circumstances,
you know, these are things that are available to you,
you may want to check with EAP,
you may want to check the OPM website for different benefits,
you may, you know, that kind of thing, but I don't know.
- I think you have to be somewhat careful there
because it's depending on the circumstances,
but try to get a third party
who might be seen as more impartial to help them.
Again, we've had some success with that.
Another question?
- Well, just on that point,
I was just noting, Angela, Carol, in the regs
I think you made good points that in a lot of cases
it helps the employee, it helps the agency
to put that paperwork in their hands
or in the hands of friends, family, attorneys.
I think literally the language in the regs says
if the employee raises an issue,
so your obligation really comes into place
when the employee has stepped out and said...
- Yeah.
- ...I've got, I may have a medical problem.
- But in a lot of instances you have enough to know
that there is a connection there.
There may not be enough
to remove the individual based on that,
but they've thrown in a medical condition during the process.
And that may give you the hook in
to get that information out there.
- Another instance, you can correct me,
not being an ER person,
if that individual has taken a lot of sick leave
and there is a lot of sick leave on the books
and that's the reason why they're in trouble.
- If you, yeah, sometimes with the sick leave you may have
just a very generous supervisor who granted it without really...
- Right.
- ...verifying that there was something there.
What you find, you know, I don't know,
I found this, maybe other agencies haven't.
You often times as an ER person don't get involved
in the situation until it's been going on six months,
a year, two years.
And you find that the person has been out,
you know, has used a lot of sick leave
and leave without pay.
And then you're getting involved,
so you're playing catch up.
You know, the other thing is that to the extent that
you can get ahead of the curve and find these things out early
which is easier said than done in most places.
You know, it makes the situation easier
because then you can start on the right track as opposed to
trying to play catch up with your managers.
Let's go on a little bit more and talk about
a little bit more about settlements.
Again, go to the OPM website, look at the settlement guidance,
it will help you tremendously
when you're looking at settlement agreements.
Remember you can't agree to any language regarding programs
over which you have no control.
So not only does that apply to OPM programs,
but it applies to anything.
You can't guarantee approval of disability retirement
as I mentioned earlier.
You can offer assistance to get that application to OPM
and help them put it together but you can't guarantee
it will be approved.
You can't guarantee the amount of the annuity,
even if you have a retirement counselor
who can give an estimate.
You cannot guarantee that that's what it,
what they're gonna get.
You can't guarantee when they're gonna start receiving
benefits because even though it maybe 41 days on average,
to get an application approved,
that doesn't mean it's gonna take 41 days.
It could take two years, it could take four days.
So you don't want to agree to anything.
You can't agree to wave any of the rights to be entitled
to any kind of retirement benefit or that they wave
any kind of payments as part of a settlement.
Again, they can't wave backpay
or, you know, payment into the retirement fund,
if you're retroactively changing their date of separation.
You can't give them entitlement to retirement benefits
that they otherwise would not get.
So if they don't have enough years of service or the age,
you can't create a fiction
so that they're suddenly 55 with 30 years' service.
Doesn't work that way.
They have to meet the requirements.
If you want to get to that point,
you have to find a way to do it legitimately.
And remember, OPM controls the retirement process,
so if you've done something illegitimate,
they can come back and say sorry.
And they've been known to do it.
Again I would say that if you have a situation
you are not really sure that what you're agreeing to is gonna
be, pass muster, get in and touch with OPM,
the General Counsel's office.
There is a contact person in the settlement guidance
and they'll give you their opinion
as to whether or not this will fly.
Also work with your General Counsel's officer,
your legal counsel on that.
Though I will tell you and as an attorney I think I can say this.
Sometimes they think they know more than they do.
Okay. So, you know,
if they haven't done this kind of work a lot,
they may not know all the requirements.
Couple other things I just want to mention and I know
we'll try to finish up because we're running way over
due to the fire drill.
If someone files for retirement
after they've received a proposal to remove,
they cannot then go ahead and appeal the proposal action.
However, if they've received the decision
and then decide to retire,
the fact that they've retired does not preclude them
from filing an appeal with the board on the removal action.
So, just keep that in mind that,
just because they go off and retire doesn't mean
they're not gonna get a nice little letter from the MSPB
in a couple of weeks saying they filed an appeal.
Can we go another five minutes?
Let's just talk about DSR a little bit.
Discontinued Service Retirement.
This has some requirements that need to be met
that are a little bit different.
You have age and service requirements.
The person has to be 50 years old with 20 years of service
or 25 years of service with any age.
They have to be involuntarily separated
due to other than misconduct.
So generally what you're talking about here
is a performance-based action or with situation.
They have to have received their specific notice.
And if they have a reasonable offer of a reassignment
that would preclude them from getting their DSR,
but generally the keys are the involuntary separation.
That's what I want to focus on.
Okay, it's not for misconduct.
Okay, and this again will come up in settlement situations.
You can't create the fiction of a DSR.
Okay, you can't say,
"Well, we're removing this person for misconduct
but now we're gonna to call it a performance-based action."
Now if you had some, if you had elements of both
and you slid it under 752, you can probably craft
a settlement that will be legit based solely
on the performance aspects.
But you can't just simply say, we're gonna make this into,
the person's being removed because
they've pilfered some money.
While we're now gonna call it a performance-based action.
OPM will look at those and since they have to approve,
the DSR don't want to do it.
Okay, there are ways to carefully craft this.
But you have to be very careful in crafting
the settlement agreement.
And if you create a fiction, you are liable to get caught.
Same thing with the RIF situation,
you can't create a RIF just simply to get someone DSR.
You're gonna have to be able to show
that you're really abolishing the position.
If you really can show that you're abolishing the position
then my experience has been that OPM will approve the DSR.
But you have to be able to show
you're really abolishing the position.
The agency is not gonna turn around the next day
and recreate it and I've actually had
settlement agreements where you were able to wave
the specific notice and all the rights that went with that,
then the person waved everything
so that we could get a settlement.
But we had to be very clear that the position wasn't being
reestablished and they were waving all their RIF rights.
Okay, it's a hard thing to do, I would not go into it lightly,
I would be sure that you would craft those carefully
and get OPM's input ahead of time.
In fact, when we did that agreement,
our General Counsel insisted that we share that with OPM
ahead of time and that OPM approve it, you know,
give us their guidance before we went and agreed to this.
And that was while we were before the EEOC,
and the EEOC was pushing big time for that settlement.
So if you're gonna do it, do it carefully,
but DSR does come into play on some occasions,
but again it's only for performance-based cases.
But if you have a performance problem
and they need the requirements of agent service,
it is somewhat, it is a way to get someone to benefit
and get them off the rolls.
Okay, we're going way over.
There is lots more that we could take about,
but we're not going to.
Are there any other questions?
Yes, ma'am.
[Indistinct dialogue]
- Yes. Yes.
- They should give it to the agency, you know,
process it through your agency.
Oh, I'm sorry. Yes, of course.
The question was if for the 18 months
creditable service under FERS, if they have deposit time,
can they pay the deposit at the time that they filed
the application for disability retirement.
And the answer is yes,
but they should pay that deposit to the agency.
- Okay, if they are other questions,
or you think of something later on,
I don't have a problem with anyone getting in touch with me,
I'll give you my contact information.
Real simple,
is my email.
You can also give me a call, 301-492-2230.
Repeat what? The phone number?
- Yes. - 301-492-2230.
- Okay, and if you have any kind of retirement related question,
if I don't have the answer, I'll find somebody else who does
and it's
and my phone number is 202...
I've given it everywhere.
I've given it, so it's no different 606-4546.
That comes directly to me.
If I'm not there, which is a lot of the time, leave a message
and I will make sure if not myself
somebody else will get back to you.
- Okay. Thank you.
- Thank you very much, Angela and Carol.
I think everybody will agree you did a fantastic job.
I apologize again for our slight break in the forum today.
For the webcast viewers, I would ask that you fill out
your evaluation forms that are in your packet
and you can fax those to us in CWRAP at 202-606-2613.
For the audience here in the webcast room,
I'd ask that you fill that format before you leave
and leave it with one of the staff.
We'll be happy to take it from you.
We do use your evaluations to identify other forum topics
and if you are interested in speaking for us,
let us know that too.
Thank you very much.