Posted on February 11, 2009 in Administrative Law
The problem with Agency efforts to provide an employee with reasonable accommodations is that such attempts are too often, neither "reasonable" nor legally viable accommodations. Let’s remember that a legally viable "accommodation" is that act, allowance, or modification, which allows the employee to continue to perform and complete the core or essential elements of one’s position. Further, Federal and Postal employees need to understand that there is nothing inherently wrong with an Agency providing an accommodation that is neither legally viable (for Federal disability retirement purposes) nor "reasonable". Let me explain. Let’s say that an employee works for the Postal Service. He or she gets injured, and let’s even assume that it is a valid OWCP Department of Labor claim. At some point, because OWCP/DOL is NOT a retirement system, they will often "create" a "modified position" and make a modified, or light-duty job offer. It could be as extreme as sitting in a corner and answering the telephone. Now, if the individual gets the same pay, there is nothing inherently wrong with such a modified job offer. However, at the same time, you need to remember that accepting such a modified job offer does not preclude the employee from filing for, and getting approved, an application for Federal Disability Retirement. This is because the modified (or "light duty") job offer is not a real, previously-vacant position, and therefore is neither "reasonable" nor truly an accommodation under federal disability retirement laws. Nevertheless, there was nothing wrong with the Agency making up such a "modified job" and offering it to the employee. This is true of all Agencies in the Federal Government, across the Board, from FAA Air Traffic Controllers who have lost their medical clearances, to IT Specialists who have lost their security clearances, to executive level administrators: modified duties, and "make-up" positions, while remaining in the same position, does not mean that there is anything inherently wrong with the modified job offer. It just means that such a modified job is neither a "reasonable" accommodation, and nor is it an "accommodation" at all — at least, not under the laws governing Federal Disability Retirement.
Sincerely, Robert R. McGill, Esquire