Posted: 12/31/2006 - DON'T HIDE YOUR MEDICAL CONDITION FROM YOUR AGENCY

Summary:

OPM demands that an agency try to accommodate an employee before it awards disability retirement. Accommodation efforts can't happen if your agency doesn't know that you have symptoms from a medical condition, which need accommodation.

By Harvey Friedman, Attorney at Law, Washington, DC

Before OPM awards disability retirement, it has a right to know that your employing agency made reasonable efforts to reassign or accommodate you. An agency cannot make any efforts, if it does not know the nature of your medical condition or at least your disabling symptoms and how they preclude you from performing your current job duties.

I know the following sounds (and is) silly, but even if you can't possibly be accommodated, you have to give them a chance to do so.

There are a few cases in which accommodation and reassignment efforts are irrelevant. An employee completely paralyzed by a stroke, would not be required to demonstrate efforts at accommodation and reassignment.

But, that's not the norm. An employee who was too embarrassed to reveal her psychiatric condition, to her supervisor, and provide her agency the opportunity to make accommodation and reassignment efforts, was denied disability retirement.

One way she could have gotten around her embarrassment was to stand up for her right to medical privacy. She could have provide the information to the agency physician who would report back to the supervisor that she could not be accommodated, without revealing the nature of her medical condition. This is cumbersome, but can be done.

Usually, agency efforts at accommodation and reassignment amount to a joke, but if you don"t go along with the joke it can cost you your disability retirement. You need the Agency to certify in the OPM Agency Reassignment and Accommodation Efforts form, that you can't be accommodated or reassigned.

By the way, if an agency says that it can accommodate you, it may not know what it's talking about, since it may not know about the very special rules mandated by MSPB case law.

While this is gist for another article, what an agency often thinks is accommodation, is not necessarily accommodation under the case of Bracey v. OPM, 236 F.3d 1356 (2001) (for non-Postal Service employees) and Ancheta v. OPM, SF-844E-01-0309-B-2 (2003) (for Postal Service employees). For instance, these cases hold among other things, that "light duty" is not an accommodation.

I'll leave it at that for the moment. You just make sure that you give them the opportunity to accommodate you, even if it is a pretend opportunity.






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