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.

The former employee, a USPS worker, was terminated for “Failure to Maintain a Regular Work Schedule/Tardy“. In fact, the Plaintiff suffered from Sleep Apnea, a disability that affected his breathing and sleeping and caused him to frequently arrive late for work.

In settlement of his removal appeal to the MSPB, the Postal Service [...]]]> A recent Federal Circuit decision held that the Agency breached a settlement agreement it made with its former employee.

The former employee, a USPS worker, was terminated for “Failure to Maintain a Regular Work Schedule/Tardy“. In fact, the Plaintiff suffered from Sleep Apnea, a disability that affected his breathing and sleeping and caused him to frequently arrive late for work.

In settlement of his removal appeal to the MSPB, the Postal Service agreed to provide 3 documents to help the former employee apply for disability retirement. However, they failed to provide the documents until well after that deadline had passed. (Under OPM regulations, an applicant for disability must file for retirement within one year of his separation from the government in order to be eligible.)

The Plaintiff appealed to the MSPB, claiming that the Agency did breach the settlement agreement. The MSPB found in favor of the Agency – the Federal Circuit in turn found that the Postal Service had breached the agreement.

Interestingly, the Postal Service tried to argue that the former employee should have filed something – even an incomplete application – with OPM, in order to avoid losing eligibility. The Federal Circuit didn’t buy the argument - according to the Court, he would still have been irreparably harmed by the government’s breach. Apparently, Agency Counsel did not realize that federal disability retirement benefits do not begin to accrue until the application is complete.

The plaintiff received a new removal date so he could make a timely application for disability retirement, as well as back-pay and other remedies.

If you believe the Agency has breached a settlement agreement in your case, or if you need help reducing a settlement agreement to writing, it is best to have a Federal Employee lawyer review your case.