A serious illness or injury can leave a federal employee unable to keep up with the job, even after accommodations have been tried. When the agency proposes removal for medical inability to perform, many employees put all their energy into fighting the removal. Sometimes that is the right move. Often, the more important question is how you will pay your bills afterward. As a Maryland federal employment attorney, we regularly help employees at agencies like SSA, NIH, and the VA medical centers in Baltimore see that a medical removal can strengthen an application for FERS disability retirement, which provides lasting income.
What is FERS disability retirement, and who qualifies?
FERS disability retirement is a monthly annuity, paid by the Office of Personnel Management, for employees in the Federal Employees Retirement System who can no longer provide useful and efficient service in their position because of a medical condition. You do not have to be unable to work in any job.
To qualify, you generally must meet these requirements:
- at least 18 months of creditable civilian federal service under FERS
- a medical condition that arose while you were in a FERS-covered position
- a condition expected to last at least one year from the date you apply
- a resulting deficiency in performance, conduct, or attendance, or a condition incompatible with staying in the job
- no reasonable accommodation and no vacant position at the same grade and pay in your commuting area that you could fill
You must also apply for Social Security disability benefits and give OPM proof of the application. The Social Security outcome does not decide your OPM claim.
How does a medical removal affect a disability retirement claim?
It can help considerably. Under Bruner v. Office of Personnel Management, a 1993 Federal Circuit decision, removal for inability to perform because of a medical condition creates a presumption that the employee qualifies for disability retirement. The burden then shifts to OPM to produce evidence that you are not disabled.
This surprises many employees. A removal letter stating that your medical condition prevents you from doing your job, backed by the medical documentation the agency relied on, gives OPM a hard record to argue with. That is one reason the wording of the removal decision, and the reason the agency gives, can matter as much as whether the removal happens.
How much does FERS disability retirement pay?
For most employees under age 62, the annuity equals 60 percent of your high-3 average salary for the first 12 months, then 40 percent until age 62. Both amounts are reduced by Social Security disability benefits: by 100 percent of them in the first year and by 60 percent after that. At 62, OPM recalculates the annuity as if you had kept working until then.
You can work while receiving the annuity, but if your earnings reach 80 percent of the current pay for your former position in a calendar year, payments can stop. If you are also receiving workers’ compensation through the Office of Workers’ Compensation Programs, you cannot collect OWCP wage-loss benefits and a disability annuity at the same time, so you will have to choose between them.
What is the deadline to apply, and how do I file?
You must apply within one year of your separation from federal service. OPM can waive the deadline only in narrow circumstances, such as when the employee was mentally incompetent during that year.
The application uses Standard Form 3107, the FERS retirement application, and Standard Form 3112, the disability retirement packet, which includes your statement, a supervisor’s statement, and medical documentation. If you are still employed or have been separated for 31 days or less, the packet goes through your agency’s human resources office. After that, you file directly with OPM. Medical evidence carries the most weight, so a detailed letter from your physician describing how your condition affects specific job duties is far more useful than a diagnosis alone. Processing often takes many months.
Should I resign, fight the removal, or apply for disability retirement?
These choices are not always either-or. You can apply for disability retirement while employed, while a removal is pending, or after it takes effect, and you can appeal a removal to the MSPB within 30 days while the disability application moves forward.
Resigning before the agency acts is the choice to think about most carefully. A resignation does not by itself disqualify you from disability retirement, but it gives up the Bruner presumption a medical removal would provide. If you believe the removal involves disability discrimination or a failure to accommodate, that claim follows its own timeline, including the 45-day deadline to contact an EEO counselor.
What can I do if OPM denies my application?
You have 30 days from the date of the initial denial to ask OPM for reconsideration, and you can submit new medical evidence with that request. If reconsideration is also denied, you have 30 days to appeal to the MSPB, where an administrative judge can hold a hearing and decide the case fresh. The hearing is often the first chance to put a full medical record and live testimony in front of a neutral decision-maker.
How can a Maryland federal employment attorney help with a medical removal?
A lawyer can look at the removal and the retirement claim together, which is where most of the strategy lies. That can mean responding to a proposed removal in a way that keeps the medical basis clear, pursuing accommodation or EEO claims where the agency fell short, and assembling physician statements that address OPM’s actual criteria. If OPM denies the application, counsel can handle the reconsideration request and the MSPB appeal.
Planning for income, not only the job
A medical removal ends one chapter of your federal career, but it does not have to end your income. FERS disability retirement can replace part of your salary until age 62, a removal for medical inability can shift the burden to OPM under Bruner, and the one-year filing deadline gives you a firm date to plan around. The Mundaca Law Firm represents federal employees throughout Maryland from our Annapolis office. If you are facing a medical removal or have already been separated, speak with a Maryland federal employment attorney and schedule a confidential consultation to map out both your appeal rights and your retirement options.