Tag Archives: federal disability retirement

The Shutdown and Federal Disability Retirement

retirement

The partial government shutdown has lasted almost 30 days now and let’s be honest, it is a difficult time to be a federal employee. Whether you’re being forced to work without pay, or on furlough with no pay, it’s a tough time. Seemingly every day there is a new story regarding federal employees—unions suing the government or federal employees being ordered to work without pay. It may have you thinking if there’s anything else.

NTEU Sues Over the Shutdown

The National Treasury Employees Union filed a lawsuit against the government alleging the federal statute allowing some federal employees to be required to work without pay during the shutdown is unconstitutional.

“If employees are working, they must be paid—and if there is no money to pay them, then they should not be working,” NTEU National President Tony Reardon said.

One example the lawsuit points to is employees at the Internal Revenue Service. NTEU says these employees’ jobs involve “the regular functions of government unrelated to protecting human life.” IRS is recalling thousands of workers to work in the preparation for the upcoming tax filing season.

“While a case can certainly be made that some federal employees, such as Customs and Border Patrol Officers and others, are protecting human life and property, that line of reasoning gets quite shaky when applied to thousands of IRS employees being called back in order to process tax refunds—and to do so without being paid,” Reardon said. “That is not how the law works, and that is not how this country should work.”

Federal Employees Ordered to Work Without Pay

Here are a few of the most popular stories about this:

Politico (1/15, Mintz, Gurciullo, 4.04M) reports that, according to Professional Aviation Safety Specialists Vice President Michael Gonzales, approximately 1,500 inspectors had returned to work as of today. Gonzales said, “The FAA Flight Standards Service has developed an aggressive plan to bring key components of our safety inspector work online, with an initial recall of all principle safety inspectors through next week.”

Bloomberg News (1/15, Dlouhy, 5.74M) reports that the Administration has “ordered thousands of furloughed federal employees back to work without pay to inspect planes, issue tax refunds, monitor food safety and facilitate the sale of offshore oil drilling rights.” The efforts, Bloomberg News says, show how President Trump is “trying to limit the impact of the partial government shutdown and shield favored industries” as the impacts of the shutdown spread across the country. Critics, however, say the Administration is “skirting federal law by continuing some functions” amid the shutdown.

The Washington Post (1/15, Marimow, 13.51M) reports US District Judge Richard J. Leon on Tuesday “refused to force the government to pay federal employees who have been working without compensation during the partial government shutdown, rejecting arguments from labor unions that unpaid work violates labor laws and the Constitution.” The judge “ruled against a consolidated claim that the National Treasury Employees Union and the National Air Traffic Controllers Association filed against the government, alleging that employees should not be forced to work without pay.” The Washington Free Beacon (1/15, McMorris, 58K) reports Judge Leon “said the motion could throw the political process into ‘disarray’ even as he acknowledged that workers ‘are not the ones at fault.’”

Federal Disability Retirement

None of us really knows when this shutdown will end. It could be a few days, or it could be a few months from now. Many of you may be working through an injury or illness, and have been for some time now, that prevents you from performing your essential job duties. If this describes you, the time could be right for you to start the process of applying for this benefit. If you would like to learn more about this and how Harris Federal Law Firm may be able to help you, please don’t hesitate to reach out to us. Call us at 877-226-2723 or fill out this INQUIRY form to schedule your FREE consultation.

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Stress and FDR

stress

Stress is defined by Oxford Living Dictionaries as “a state of mental or emotional strain or tension resulting from adverse or demanding circumstances.” It’s found in every part of life, good or bad—marriage, divorce, working with others, doctor appointment, etc.

An eligibility requirement for federal disability retirement is having a medical condition (injury or illness) that prevents your ability to provide useful and efficient service in your current job with the federal government. It’s certainly true stress can make you ill and cause a host of medical or mental issues, but is stress alone enough to qualify you for federal disability retirement?

Maybe.

The main question here is if you were removed from your stressful environment, would you be able to perform your essential job duties efficiently? Would you “get better”? If the answer is yes, or probably, stress would not qualify you. On the other hand, if the answer is no, then you need to understand how to successfully prove your “situational disability”.

A situational disability is location specific, attributed to something or someone that only shows up at your workplace. The disability is NOT situational if it extends beyond the workplace and prevents you from doing ANY job in your agency.

These cases are especially hard to prove because it’s usually considered causally connected to something or someone, so merely removing yourself from that environment would essentially “cure” you. If you’re going to claim stress as your medical condition, be sure to include objective medical evidence connecting the stressor to your inability to perform your job duties.

If you think you fall into this category, give us a call at 877-226-2723 or fill out this INQUIRY form. We’d love to schedule you with a FREE consultation and get more information from you.
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How Will the Shutdown Affect YOUR Retirement?

shutdown

We are now in week 3 of the partial government shutdown. We are also in a new year, which means this time is a popular one for federal employee retirements. More than 300,000 federal employees are on furlough without the guarantee of back pay, and an additional 500,000 are working but facing a delay in their paychecks.

Due to the end of the year being a popular time to retire, some employees have spent their last days “working” in a furlough status. The Office of Personnel Management has issued guidance on furloughs and their effect on retirement planning, paperwork processing, and benefits. This information is also important for those wanting to apply for federal disability retirement, or who are waiting on their application to be processed by OPM. Below are some highlights from the guidance.

  • Retirement planning—a furlough period in a non-pay status is treated as a period of leave without pay. Employees receive credit for LWOP periods up to 6 months in a calendar year without impact on their service credit for retirement or their High-3 average salary.
  • Retirement effective during a furlough period—employees will be credited with service through their effective date of retirement as if there was no furlough. For example, if the effective retirement date was December 31, 2018, an employee will receive service credit through the end of business that day but not beyond that.
  • It’s important to keep in mind there may be a delay in the processing of retirement applications because the employees responsible for finalizing retirement packages may be furloughed. That also means retirement applications can’t be sent to OPM.
  • Lump sum payments for annual leave at affected agencies will be delayed until funds are available.
  • Retirees will receive the cost of living adjustment in their retirement payment on January 1st.

Benefits/Insurance

Employees currently enrolled in the Federal Employees Health Benefits Program will continue their enrollment for up to 1 year in a non-pay status with the government continuing to pay its share. The effective date of an Open Season enrollment change will be unaffected by the shutdown.

Federal Employee Group Life Insurance continues to pay for 1 year for those in a non-pay status, without cost to the employee.

Coverages of expenses under flexible spending accounts won’t be reimbursed until the employee returns to pay status.

Any eligible dependent care expenses incurred during the non-pay status may be reimbursed up to whatever balance is in the employees’ dependent care account, so long as the expenses incurred during the non-pay status allow the employee to work, look for work, or attend school full-time.

Federal Long-Term Care Insurance Program coverage continues if premiums are paid.

Federal Employee Dental and Vision Insurance Program coverage will continue but employees will get a direct bill for past due premiums if no premium is paid for 2 consecutive pay periods.

As far as the Thrift Savings Plan is concerned, employees can make inter-fund transfers of their existing account balance during the furlough period and, may be entitled to make up contributions when they return to pay status.

There should be little effect on Social Security checks. Most Social Security offices are open and are processing payments because the agency has full-year funding already.

The shutdown may be in full swing but that doesn’t mean you should wait to file a federal disability retirement application if you can no longer work in your current job due to an injury or illness. If you need help doing so, please don’t hesitate to call us and set up a FREE consultation with us. Call us at 877-226-273 or fill out this INQUIRY form.

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improper

The Office of Personnel Management’s Inspector General released a report saying that even though the overall portion is small, Civil Service Retirement System improper payments are still considered to be “high-risk”.

OPM overpaid $82.9 billion to 2.6 million federal annuitants and survivor annuitants under CSRS and the Federal Employee Retirement System. The payments are made from the Civil Service Retirement and Disability Fund, in which federal employees and taxpayers each contribute.

The overall improper payment rate for these retirement programs is 0.38%. Per the IG, the total amount of all types of improper retirement payments reported by OPM was $313.8 million, and of that, $238.7 million were overpayments.

The amount of underpayments was $75.1 million, representing 0.09%.

While these numbers are small, the IG says they still represent a “high-risk” because of the antiquated IT systems at OPM. “OPM’s systems were not designed or built to perform analysis of vast quantities of data…it [OPM’s Retirement Service office] is unable to provide the level of granularity needed to fulfill OMB A-136 reporting requirements,” the report said.

The IG wasn’t optimistic in the report…

“[We] continue to believe that the process for conducting projects and reviews such as those described above, and for reporting and following up on the results, needs to be improved. In addition, the need for continuing innovation in the analysis of available information on annuity payments is never-ending. The OIG spends a significant amount of time and resources identifying, assessing, and investigating retirement cases where a single deceased annuitant was improperly paid over 5, 10, or even 20 years. It is clear that not all improper payments are being identified in a timely manner. Furthermore, we continue to conclude that Retirement Services lacks a comprehensive centralized tracking system to record and analyze its program integrity work and lacks appropriate internal control procedures to timely detect, identify, and report potential fraud, waste, and abuse.”

Improper “High-Risk” Payments

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Federal Disability Retirement TRUE or FALSE

falseRetirement is often a confusing time, especially in the federal government. Do you retire on a regular retirementearly retirementphased retirement, or deferred retirement? Then, what happens if you are hurt or become ill and can no longer perform your job duties? Now you throw federal disability retirement into the mix. That’s a lot to think about, especially if you’re faced with an injury or illness.

So, let’s look at some true and false statements regarding federal disability retirement.

If I go out on a disability retirement, that means I’m disabled, so I can’t work anymore.

FALSE. When you are approved for a disability retirement, you are proving you can no longer perform your job duties for that specific position. It’s an occupational disability, not a total or permanent disability. In fact, if you are approved for federal disability retirement, one of the great benefits is that you can work in the private sector, doing pretty much anything you want, and earn up to 80% of your previous positions’ current salary.

I can keep my health and life insurance benefits with federal disability retirement.

TRUE. If you’ve carried coverage for the 5 consecutive years immediately leading into retirement, or for all periods eligible if less than 5 years, you can continue into federal disability retirement.

I will not receive a Cost of Living Adjustment if I go out on federal disability retirement.

FALSE. In fact, not only will you receive a COLA after the first 12 months of being on disability retirement, but you’ll also receive it every year after, so long as you’re eligible. Regular FERS retirees only start receiving COLA’s once they reach age 62.

I must be approved for Social Security Disability.

FALSE. It’s true you must apply for SSD when you apply for federal disability retirement from the Office of Personnel Management, but you do not have to be approved. These 2 disability programs are quite different and have very different qualification standards.

My medical condition must last for at least a year.

TRUE. You must have a documented medical condition that you are currently treating for and it must last longer than 12 months.

To be eligible, I must’ve worked for the federal government for years, right?

FALSE. While this technically true for CSRS employees (5 years of civilian service), there aren’t many CSRS employees out there that would still qualify for federal disability retirement. Under FERS, you only need to have 18 months of civilian service to qualify.

I have more than one chance to get approved.

TRUE. If you are denied at the initial stage with OPM, you have another shot at the Reconsideration stage. Here, you can submit new evidence. The process here is similar but the deadlines to file are much stricter. You even have another stage of appeal should you get denied at this level. Next, it will move to the Merit Systems Protection Board, which is a much more formal process, again with strict deadlines.

There are just a few of the most common questions we get from clients and potential clients. If you have any questions about these or other questions, please feel free to reach out to us at 877-226-2723 or fill out this INQUIRY form. We’d be happy to set you up with a FREE consultation and help in any way we can.

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More Federal Retirement Claims

claims

The Office of Personnel Management released data showing that the number of federal employees who filed for retirement in FY2018 increased 24% over the previous year. OPM published its retirement processing statistics and it showed that 7,142 employees filed for retirement in September, which is the final month of the government’s fiscal year, bringing the total federal retirement claims in FY2018 to 105,298—a 24.1% increase over the number of claims from the federal workforce in FY2017, which had 84,807.

Many have warned of an impending wave of federal employee retirements, citing the fact that federal employees skew older than their private sector counterparts. In July 14% of the federal workforce was eligible to retire, and in 5 years, that number is expected to jump to 30%.

There has also been speculation that federal employees would leave service since the election of President Trump, but that hasn’t panned out. In fact, in FY2017, 10% fewer employees filed for retirement than in FY2016.

Donald Kettl, a professor and academic director at the University of Texas Lyndon B. Johnson School of Public Affairs, thinks a combination of factors has likely led to the spike in retirements this past fiscal year.

“Two theories are worth noting: one is that the long-predicted ‘silver tsunami’ is happening,” Kettl said. “The federal workforce is substantially older than in the private sector, so the inevitable might finally be occurring. That is even more likely with the stock market in record territory, as workers decide to cash in. The other is a Trump effect—the possibility that government officials are deciding to leave, given the high levels of tension in some agencies and proposals to downsize and reorganize others.”

Another potential factor has been the Trump administrations’ efforts to lower the federal government’s personnel costs, although this has not been successful. OPM acting director Margaret Weichert suggested that federal employees are not in government for the pay, however, recent data suggests that compensation does play a role in people choosing to retire. During the Obama administration, there was a freeze on federal employee pay from 2011-2013 and locality pay was frozen from 2010-2015. Federal employee retirements as recent as FY2016 totaled 94,985, 12% higher than FY2017.

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Can Your Agency Forcefully Relocate You?

relocate

When an agency decides to relocate an office, or the entire agency (this can be done for many reasons), can they force you, if you are employed by them, to relocate or risk losing your job? What options are available to you if you still want to keep your job without relocating?

Forced to Relocate

Yes, your agency, or your job, can be relocated and failure to relocate with it can be grounds for removal. Many federal employees may not know that. If the government wants to move you, it must pay for moving expenses, real estate fees, and temporary housing.

This really doesn’t happen too often. Large-scale relocations tend to generate congressional interest because no Representative or Senator wants to see jobs moving out of their district or state. Unions can also get involved here and local officials oppose losing local jobs. Still, relocations can happen.

Mobility Agreements

Some employees must sign mobility agreements as a condition of employment. If the employee declines a move, they can be fired for failing to satisfy a condition of employment. Of course, this doesn’t mean that only employees on mobility agreements can be ordered to relocate. Others can be ordered as well.

A case law, established in 1980, gives authority to an agency to fire an employee who refuses a forced move. When an employee isn’t covered by a mobility agreement, the agency has the burden to show they are making the move because of legitimate management reasons that would promote the efficiency of the service and give employees enough notice. If the agency can meet that burden and the employee can’t show the reason is a pretext, the Merit Systems Protection Board (MSPB) will typically uphold the removal. If the employee is covered by a mobility agreement, the removal is even easier for the agency to defend.

Agency Impact

Many questions come with this, such as how many employees relocate at once? What happens to the agency after that? Does the agency have money to complete the relocation?

Some answers lie within the Defense Department. They had multiple rounds of the Base Closure and Realignment Commission where they made decisions to relocate or consolidate organizations.

For a short move 40 miles away, a report showed 70% of employees relocated with their jobs when the Defense Information Systems Agency moved to Fort Meade, MD, 15% found other jobs, and 15% retired.

When agencies move smaller numbers of employees, the impact on the agency typically isn’t severe. However, if an agency wants to move 1,000 jobs and only 300 people go, the impact can be significant.

Congressional Approval

Congressional approval is only needed when the agency needs big money to pay for relocation. There may be congressional notification requirements, reprogramming requests, or money needed. If that happens, Congress will have a say and they’ll want to know the agency’s reasons for the move, how it plans to deal with workforce issues, and how it will mitigate the risk to the mission that may be caused by large numbers of employees refusing to relocate.

Most employees will never be asked to move, or be forced to move, but this is good information in case you ever find yourself in that situation.

Disability Retirement

Another thing you may consider in this situation is federal disability retirement. If you’ve been dealing with, or working through, an injury or illness and are having trouble performing the essential functions of your job, you may qualify. Give us a call at 877-226-2723 or fill out this INQUIRY form and we can schedule a FREE consultation with you.

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Accommodation and Reassignment

accommodationAmong the other requirements for Federal Disability Retirement eligibility, one is your agency must certify it is unable to accommodate your disabling condition in your present position and it has considered you for any vacant position in the same agency, at the same grade/pay level, within the same commuting area, for which you are qualified for reassignment.

That is a loaded explanation, so for the sake of this post, we are just going to focus on the accommodation and reassignment parts.

So, what do these terms mean and how can they affect your federal disability retirement application?

Accommodation

Accommodation is an adjustment made to your job and/or work environment that enables you to still perform the essential elements of your job. Reasonable accommodation applies to both your current position and to any vacant position to which you may be reassigned. These accommodations can include:

  • Modifying work site
  • Adjusting work schedule (if it’s still to the terms in your job description)
  • Restructuring your job (if the essential job functions stay the same)
  • Acquiring or modifying equipment or devices

Your agency must exhaust all reasonable efforts to help accommodate you before you consider federal disability retirement. If your agency is successful in accommodation, you should not apply for FDR. Further, if you’ve already sent your application to OPM, you/your agency must notify OPM immediately.

Accommodation can still be tricky. Here are a few “accommodations” that OPM does not accept (for FDR purposes):

  • Using up sick/annual leave to supplement a full-time schedule
  • Taking away job duties
  • Part-time work schedules, especially if your job description states you’re in a full-time position

Reassignment

Like accommodation, federal agencies must make every effort to retain an employee through reassignment. When you begin the process of FDR, your agency must review all vacant positions in the same grade/pay level, within the same commuting area to determine if you meet the minimum qualifications for a vacant position. The position must be a real one, not one your agency “made up”. You are deemed qualified for reassignment when you meet the minimum qualifications for a vacant position.

Refusal of Reassignment

If your agency locates one or more vacant, available positions at the same grade/pay level and within the same commuting area for which you are qualified for reassignment, and you refuse that assignment, OPM will not approve your application. Further, accepting a position at a lower pay/grade will have the same outcome at OPM.

However, you may decline an offer to a position at a lower pay/grade level, a position of lesser tenure or a position in another agency or commuting are without it affecting your eligibility for FDR.

Harris Federal Law Firm assists federal employees with their federal disability retirement applications. If you think you may qualify, don’t hesitate to call us 877-226-2723 or fill out this INQUIRY form. The consultation is always FREE.

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Claims Processing at OPM

claimsIt’s no surprise that the Office of Personnel Management has a large backlog of retirement claims, including both regular retirement and disability retirement applications. When you submit your retirement application, you want to be 100% sure it’s complete and timely; this is especially important for disability retirement applications because there are deadlines to be aware of.

Receiving

When OPM receives your application, they will send you a letter with information about your claim and you’ll get your Civil Service Annuity (CSA) number. Your case will be assigned to a Legal Administrative Specialist (LAS), who makes the determination based on what you’ve submitted and if that meets the eligibility requirements:

  • You have 18 months creditable civilian FERS service.
  • While employed in a FERS position, you became disabled due to disease or injury for useful and efficient service in your current position.
  • Your condition is expected to last at least one year.
  • Your agency must certify its unable to accommodate your condition in your present position and its considered you for any vacant position in the same agency, at the same grade and pay level, within the same commuting area, for which you are qualified for reassignment.
  • You must apply before you are separated from your agency, or within one year thereafter.
  • You must apply for Social Security benefits.

Approval

Both you and your employing agency will be notified and at this point, your agency will separate you (if you are still working).

The Payment Processing Department at OPM will calculate your benefit and make any deductions for insurance and/or survivor benefits and Social Security (if applicable).

Denial

Again, you and your employing agency will be notified in the case of a denial. Remember that you do have appeal rights. If your application is denied at the initial level, you have 30 days to appeal OPM’s decision. This is called the Reconsideration stage. If you choose to appeal, a different LAS will be assigned to your case, and you’ll have the opportunity to submit supplemental evidence to strengthen your claim. OPM follows the same process if you are approved at this stage (as if you were approved initially).

If you get denied a second time, you again have 30 days to appeal. This time you appeal to the Merit Systems Protection Board. This is a more formal process and OPM will assign an Administrative Judge to oversee the case. There will also be an attorney assigned to defend OPM’s decision.

It’s important to know you have appeal rights in the case of a denial at the initial level. To avoid this though, be sure you are submitting a complete and thorough application the first time.

Harris Federal Law Firm has secured over 2,000 approvals for our clients. We know this system very well and we represent you at all 3 levels (if needed). If you need help with your case, don’t hesitate to call us at 877-226-2723 or fill out this INQUIRY form. Our consultation is always FREE. Remember, you have filing deadlines!

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Taco Tuesday!

It was Taco Tuesday last night as we prepared dinner for the families staying at the Ronald McDonald House (RMH) here in Lexington, KY!

The Ronald McDonald House is very near and dear to our hearts here at Harris Federal. The son of a member of our firm underwent open heart surgery many years ago in Cincinnati, OH. Their family was able to stay at the RMH located next door to the Cincinnati Children’s Hospital. His family even enjoyed a Thanksgiving dinner during their stay.

We are glad to have the opportunity to give back to such a wonderful organization.

Be sure to check out their website to learn more about how they help families in need.

http://rmhclexington.com/

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