The Federal Government is tasked, by law, with being the Model Employer for hiring and retaining and accommodating disabled employees.  However, in every year since 1994 (with one exception), the percentage of disabled [...]]]> Here is a link to a great article about OPM Deputy Director Christine Griffin. Ms. Griffin is working to improve the Federal Government’s track record in hiring diverse applicants.  It appears that her focus will be on increasing diversity in Federal Government for females, Hispanics, and disabled workers.

The Federal Government is tasked, by law, with being the Model Employer for hiring and retaining and accommodating disabled employees.  However, in every year since 1994 (with one exception), the percentage of disabled workers in the federal workplace has declined.  By 2008, according to the EEOC, the Federal government employee population consisted of only .98 percent disabled workers.

In the experience of this attorney, Federal Government managers and their attorneys and HR/ER/LR specialists are poorly trained in their legal duties to disabled employees under the Americans with Disabilities Act, Rehab Act, and Americans with Disabilities Amendments Act.  One Department of Interior (Bureau of Indian Affairs) manager testified, under oath, that since he became a manager (in/around 1994), he had never received any training or education on the  Americans with Disabilities Amendments Act.

Department of Homeland Security managers repeatedly admit that they have rarely heard of the Americans with Disabilities Act, no less received any training in working with Americans with Disabilities in their workforce.  I can recall one deposition where an Agency supervisor at DHS testified – presumably with entire sincerity – to the effect that holding a pencil and using a manual stapler was an essential function of the job of an adjudications officer, and the Agency couldn’t accommodate an employee that couldn’t hold a pencil or use a manual stapler.

Let’s not even start on the USPS treatment of disabled workers.  This Agency has tried, year after year, to come up with some new plan to deal with the number of workers that are injured on the job, or who have become disabled because of the demanding physical work of the Postal Service.  They focus on the bottom line – cutting costs – and this is why they fail.  The mismanaged USPS could fix its problems, improve its financial bottom line, and boost employee morale if it did three (3) simple things: 1) Follow the  Americans with Disabilities Amendments Act requirements to the letter; 2) work with, not against, its Employee Unions to modernize its equipment and the structure of its workforce; and 3) educate its managers and attorneys on how to properly accommodate disabled employees.

What is more troublesome is that the in-house attorneys that advise Federal Agencies on personnel matters are equally and uniformly deficient in their understanding of the Americans with Disabilities Act, the Rehab Act, and the Americans with Disabilities Act.   I don’t feel like I’m going out on a limb when I say that it is a rare thing to find an in-house Agency attorney who understands even the basics of the Americans with Disabilities Act, Rehab Act, or the  Americans with Disabilities Amendments Act.  There are rarely any requirements that in-house attorneys get CLE (Continuing Legal Education), and their training often consists of sitting at a computer reading somewhat juvenile Powerpoint presentations about sexual harassment.

If OPM Deputy Director could do one thing – and I don’t even know if it’s in her scope of authority – to improve the lot of disabled federal employees, it would be to require Agency in-house attorneys and HR/LR/ER Specialists to have a minimum of 10-40 hours of CLE in disability discrimination law each year. Is that a lot? Yes. But the federal government legal team has a lot of catching up to do.

In one EEOC hearing in 2009, the Administrative Judge of the EEOC lectured Agency counsel on getting the Agency’s “act together” in setting up its  Reasonable Accommodation program. Paraphrasing the EEOC Administrative Judge, he told the attorney that the process isn’t that complicated, and you’ve had over a decade to figure it out.

One Dept of Defense manager famously testified in an MSPB case that he fired an employee with Major Depressive Disorder stating (and I’m paraphrasing here), “my sister had depression and she could still go to work. Why couldn’t this employee?”  Needless to say, that employee quickly returned to their job with a significant monetary settlement.

My Firm offered to help one Agency with recurring violations of the ADA to develop a Reasonable Accommodation program..  Our Firm was turned down.  Not long after, I read another decision where this Agency was hit with a disability discrimination finding.

Attorney Chris Attig: “If I had a dime for every manager, attorney or human resources specialist in the Federal Government who testified or argued that they think it’s okay to fire someone because of a disability, or think that their Agency has no duty to disabled employees, or fails to demonstrate even a miniscule level of awareness of the Americans with Disabilities Act, I could quit the practice of law today.”

Hopefully Ms. Griffin can have an impact through her position at OPM, and I remain highly optimistic about her work.  Until then, my Firm will continue the fight, case-by-case, to educate federal government managers, HR/LR/ER Specialists, and federal government attorneys on their duties and obligations to disabled employees.

One way we will do this is by educating Union representatives – if you are a Union representative, steward or officer, and would like Mr. Attig to come to your facility to educate your reps on the Americans with Disabilities Act, Rehab Act, or the  Americans with Disabilities Amendments Act and other legal rights for disabled employees, contact the Attig Law Firm today.  In many cases, we can offer this service for no charge to Unions and Union stewards/representatives/attorneys/officers.  Click on this link to learn more.

The Attig Law Firm represents federal employees and postal workers nationwide in their federal disability retirement applications, disability discrimination claims, wrongful suspension and termination claims, and other employment related matters, including appeals to the MSPB, discrimination claims before the EEOC, and other OWCP and OPM matters.  No post on this website is legal advice or intended to be legal advice; the Firm believes that Information is Power, and attempts to provide Federal employees and Postal workers with more information about their MSPB, EEOC, OPM and OWCP appeal rights.

Wage grade employees, who are paid under a separate system, will have their raises capped at the amount going to GS employees in their location; wage grade raises are paid at varying times of the year.

New pay tables will be issued with an upcoming presidential order on the raise, [...]]]> December 16, 2009:  Congress has finalized a 2 percent raise for General Schedule (GS) employees.  The budget measure specifies paying 1.5 percentage points to base pay and splitting funds for the remaining half-percent as locality pay.

Wage grade employees, who are paid under a separate system, will have their raises capped at the amount going to GS employees in their location; wage grade raises are paid at varying times of the year.

New pay tables will be issued with an upcoming presidential order on the raise, which will be effective with the first full pay period of the new year.

The Attig Law Firm represents Federal Employees in MSPB Appeals, EEOC Complaints, OWCP claims, schedule award requests, federal disability retirement applications to OPM and appeals to the MSPB, and much more.  The Firm also provides representation to  U.S. Veterans who were injured in military service in their claims for disability compensation benefits from the VA, the Board of Veterans Appeals (BVA), the Court of Appeals for Veterans Claims (CAVC), and the Federal Circuit Court of Appeal (Fed Circ).  Click here for a full listing of the Attig Law Firm’s Practice Areas.

1) The employing Agency was the USPS in each of the  MSPB appeals

2) Each of the  MSPB Judges reversed was from the San Francisco Regional Office

3) Each of the 3 cases dealt with “restoration rights” for Federal employees who had recovered from an on-the-job injury.

4) Each of the 3 cases reinforced the incorporation of the Americans with Disabilities Act and [...]]]> The  MSPB, with new Board members, issued three (3) decisions earlier this month.  Those three decisions had three things in common:

1) The employing Agency was the USPS in each of the  MSPB appeals

2) Each of the  MSPB Judges reversed was from the San Francisco Regional Office

3) Each of the 3 cases dealt with “restoration rights” for Federal employees who had recovered from an on-the-job injury.

4) Each of the 3 cases reinforced the incorporation of the Americans with Disabilities Act and the Rehabilitation Act into the restoration rights regulations, which, in this author’s opinion, has been glossed over by the  MSPB for years.

In the first case, Smith v. USPS (MSPB Docket No. SF-0353-09-0202-I-1), the Board vacated the  MSPB Administrative Judge decision denying the appellant’s request for restoration, and remanded it to the Administrative Judge for additional evidence. The  MSPB Administrative Judge found that the appellant failed to show by preponderant evidence that the agency acted arbitrarily and capriciously in denying his  request for restoration. The full MSPB found that the Administrative Judge erred because the Agency failed to apply the same legal standards to a request for restoration as would be applied to an individual with a disability under the Americans with Disabilities Act and the Rehabilitation Act. The ADA requires that the agency must make  reasonable accommodation of an employee’s disability through means such as modifying or adjusting the duties of the position at issue, or reassigning the employee to a vacant position whose duties the employee can perform. Under the Americans with Disabilities Act and the Rehabilitation Act, an agency is required to afford  reasonable accommodation to the known limitations of a qualified individual with a disability unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its program. Because the USPS failed to demonstrate that an accommodation of the employee, in the facts of this case, worked an  undue hardship on the Agency, the full Board found that the Administrative Judge erred in concluding that the Agency’s failure to restore was not “arbitrary and capricious”. The case was remanded only for evidence as to whether the Appellant was qualified for a particular position; if so, he is entitled to be placed in that position.

In the second case, Urena v. USPS (MSPB Docket No. SF-0353-09-0650-I-1), the  MSPB Administrative Judge dismissed a Federal employee’s  restoration rights appeal for lack of jurisdiction. The  MSPB Administrative Judge held that the appellant failed to provide any facts in support of her assertion that the agency did not conduct a search for restoration for her within the local commuting area. The full MSPB disagreed, finding that the Agency itself had submitted evidence that the Agency did not conduct a search for restoration within the local commuting area. Instead, the Agency provided evidence that it only searched the Appellant’s facility for a position. The case was remanded to the  MSPB Administrative Judge for a hearing on the substantive question of whether the Appellant’ restoration rights were violated.

In the third case, Barachina v. USPS (MSPB Docket No. SF-0353-09-0554-I-1), the full  MSPB denied the Appellant’s Petition for Review, but reopened on their own motion, reversed the  MSPB Administrative Judge’s decision and remanded the case to the  MSPB Administrative Judge. The decision in this case reinforced the Urena decision: the documentary evidence submitted by both parties showed that the USPS searched only the Pasadena facility for available work, and did not look elsewhere within the appellant’s commuting area, as required under 5 C.F.R. § 353.301(d). The agency’s failure to comply with that regulation is sufficient to render non-frivolous her allegation that the agency acted arbitrarily and capriciously in denying the Appellant’s  request for restoration.

What is important to note about these cases?

Each of the cases stressed that Agencies, in deciding whether or not to restore a federal employee who was previously injured on the job, are bound by the minimum standards outlined in the Americans with Disabilities Act and the Rehabilitation Act. The restoration regulations at 5 C.F.R. § 353.301(d) require that agencies “make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty.” Agencies are required to treat partially recovered employees substantially the same as an  individual with a disability under the Americans with Disabilities Act and the Rehabilitation Act, which require that the agency must make reasonable accommodation of an employee’s disability through means such as modifying or adjusting the duties of the position at issue, or reassigning the employee to a vacant position whose duties the employee can perform. The only way that the Agency can escape this duty is to prove that the  accommodation works an “undue hardship” on the Agency.

In recent years, the  MSPB has long upheld Administrative Judge’s decisions refusing jurisdiction in restoration rights cases, and glossing over the requirements of the ADA that are incorporated into the restoration rights statutes. Many injured workers are without jobs and paychecks, though they have fully or partially recovered from their on the job injuries.

If you have been injured on the job at a Federal Executive Agency, if you have partially or fully recovered from that injury, and your Agency (or the  MSPB) has denied your request to restoration, it may be time to try again. You should consider contacting an attorney with experience in handling restoration rights appeals to the  MSPB or a lawyer with experience representing Federal employees in  MSPB and EEOC complaints of violations of the ADA and Rehab Acts.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have recovered from an on the job injury while working  for a Federal executive Agency, and you believe that your  Agency has not honored your restoration rights, contact an attorney familiar with  MSPB appeals and federal employee EEOC complaints.

You cannot receive wage loss compensation from  OWCP and federal  disability retirement payments from  OPM at the same time.  Deciding which benefit to choose is a decision that is meant for another post, and involves considerations of whether or not you will be able to return to [...]]]> Many individuals that are currently receiving OWCP wage loss compensation and/or a schedule award ask us whether they can simultaneously receive disability compensation from  OWCP and federal  disability retirement from OPM at the same time.

You cannot receive wage loss compensation from  OWCP and federal  disability retirement payments from  OPM at the same time.  Deciding which benefit to choose is a decision that is meant for another post, and involves considerations of whether or not you will be able to return to work, personal income considerations, likelihood of full or partial recovery, etc.

You can, however, receive a schedule award from  OWCP at the same time as you are receiving federal  disability retirement from  OPM.

Why the difference?  Because a  schedule award and wage loss compensation compensate for different losses.  Wage loss compensation from  OWCP compensates you, partially, for the loss of your wages while you recover from an on-the-job injury.  Federal  disability retirement is a benefit when you cannot return to work due to a medical condition.  Thus, it is logically inconsistent to collect both  OWCP wage loss compensation and a federal  disability retirement annuity from  OPM at the same time.  A  schedule award on the other hand, compensates you for loss of use of a body part, and thus is not compensating you for the same loss as federal  disability retirement annuity from  OPM.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

The Attig Law Firm represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirement is denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.

It is best to consult with a lawyer familiar withMerit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about federal  disability retirement under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, contact an MSPB attorney at the Attig Law Firm to schedule a telephone consultation.

Mr. Attig is founder of the Attig Law Firm, a Firm that regularly represents Federal Employees before the EEOC, MSPB, OWCP, OPM and OWCP.  Clients, potential clients, and various employee organizations have commented on how helpful Mr. Attig’s straightforward and candid explanations of Federal Employment laws, processes, and forums have been to them.

Mr. Attig is available to come to your organization, union, workplace, or association to speak and/or train your [...]]]> Your managers have training on Employment Law, why don’t the workers?

Mr. Attig is founder of the Attig Law Firm, a Firm that regularly represents Federal Employees before the EEOC, MSPB, OWCP, OPM and OWCP.  Clients, potential clients, and various employee organizations have commented on how helpful Mr. Attig’s straightforward and candid explanations of Federal Employment laws, processes, and forums have been to them.

Mr. Attig is available to come to your organization, union, workplace, or association to speak and/or train your members on topics affecting Federal Employees and their Rights in the Workplace. For many Federal Employee unions, councils, locals and chapters that want to offer this training to their stewards, representatives, attorneys or officers, we can often provide these seminars at no cost to the union.

Mr. Attig’s presentations and training can help your Union Stewards better represent their membership. The presentations and training can help your organization promote better awareness of the rights of protected groups in the Workplace. It is a tenet of the Attig Law Firm that “Information is Power”, and Mr. Attig’s presentations and seminars can help your group become more powerful with better training and information.

Common topics that Mr. Attig can discuss are:

1) “The New and Improved Americans With Disabilities Act: Requesting Reasonable Accommodation in the Federal Workplace.”

2) “The Federal Employee Whistleblower: How to Blow the Whistle for Maximum Impact.”

3) “Surviving the PIP: Practical Tips for Federal Employees who have been placed on a Performance Improvement Period”

4) “EEO Complaints for Federal Employees: Understanding and navigating the administrative EEO Complaint Process for Federal Employees.”

5) “How Family Medical Leave Act in the Federal Workforce”

6) “Introduction to the Merit Systems Protection Board: What is it and when do you use it?”

7) “The Puzzle of Laws: How the ADA, OWCP, FMLA, Disability Retirement and other laws and regulations fit together to help Disabled Federal Employees.”

Most presentations last between 1 and 3 hours, but can be specifically suited for your organizations’ purposes and needs.

If your Union (local or national), workers’ association, employee group, or just a collection of similarly situated Federal Employees would like to invite Mr. Attig to present a topic on Federal Employment Law to that group, please Email the Attig Law Firm to discuss dates, topics and costs.  For many Federal Employee unions, councils, locals and chapters that want to offer this training to their stewards, representatives, attorneys or officers, we can often provide these seminars at no cost to the union.

The quick answer is “Yes, you should apply for both if you believe you are entitled to both”.  When I say “both”, I am referring to wage loss compensation benefits from  OWCP and federal disability retirement from  OPM.  If you are eligible for  federal disability retirement through  OPM, then apply for it. At the same time, if you are eligible for disability compensation from OWCP, apply for it.

However, you will not [...]]]> By far, this is the most common question that is asked during consultations.

The quick answer is “Yes, you should apply for both if you believe you are entitled to both”.  When I say “both”, I am referring to wage loss compensation benefits from  OWCP and federal disability retirement from  OPM.  If you are eligible for  federal disability retirement through  OPM, then apply for it. At the same time, if you are eligible for disability compensation from OWCP, apply for it.

However, you will not be able to receive both wage loss compensation from OWCP and federal disability retirement from  OPM at the same time.  If you are granted both you will have to make an election between the two. If you accept both, and the mistake isn’t caught, it is highly likely that sometime down the road you will get hit with a huge bill from Uncle Sam seeking recoupment of overpaid benefits.

One word of caution – if the Agency removes you from the rolls, you have only one (1) year from the date of separation to apply for  federal disability retirement through  OPM.

Do not miss this deadline – the government loves their deadlines, and they stick to them ferociously. Unless you have legal “good cause” for missing the one-year deadline to apply for federal disability retirement, you will have forever lost your ability to apply for that benefit.

There are reasons why you may or may not want to accept one or the other. The biggest advantage of  OWCP disability compensation payments is that they are currently not taxed – at least as of the date of this post (December 27, 2007).

The biggest advantage of  federal disability retirement is that, with few exceptions, the grant of benefits is permanent and cannot be revoked at the whim of the Agency.

There are other advantages and disadvantages you should consider – every federal employee or postal worker’s situation is a little bit different.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

The Attig Law Firm represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirement is denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) and disability retirement appeals to discuss the facts and law of your particular case. If you have questions about federal disability retirement under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, contact an MSPB attorney or a Federal Disability Retirement Lawyer at the Attig Law Firm to schedule a telephone consultation.

Employees who have fully recovered from disability and can perform the duties of their prior position may have what are called “restoration rights”. That is, a [...]]]> Many federal employees find it necessary to enter a period of leave without pay (LWOP) and/or accept Workers’ Compensation benefits from OWCP to recover from a partial or total temporary disability that resulted from an on the job injury. But what happens after the employee has fully recovered from that temporary disability?

Employees who have fully recovered from disability and can perform the duties of their prior position may have what are called “restoration rights”. That is, a federal employee has an absolute right of restoration to a former (or equivalent) position if that employee totally recovers from a temporary disability within 1 year of the injury. If the recovery takes longer than a year, the employee can get “priority consideration” in applying for a former position (or its equivalent).

The employing Agency must restore a federal employee who recovers within one year after beginning Workers’ Compensation for an on the job injury. The Agency will need to verify that the employee received worker’s compensation payments during the absence, and the period that the compensation was paid, so that th employee may receive any rights or benefits that accrue based on length of government service.

If the employee has been terminated, and wishes to reclaim his or her job, they should contact the hiring Agency first, and then if that fails, OWCP will assist the employee in getting their old position back.

If the employee and OWCP are unsuccessful, then the federal employee may have an appeal right to the Merit Systems Protection Board (MSPB).

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have recovered from an on the job injury while working  for a Federal executive Agency, and you believe that your  Agency has not honored your restoration rights, contact an attorney familiar with  MSPB appeals.