The Postal Treadmill: Taking the option of USPS Disability Retirement

For many years, the U.S. Postal Service has allowed its workers to remain productive by fashioning limited duty, modified positions for injured employees who were unable to perform all of the essential elements of the job.  To a great extent, those prior years of apparent accommodation (“apparent”, because such modified job offers were never legally sufficient accommodations) were analogous to a treadmill:  So long as the speed of the treadmill allowed for the Postal Worker to perform at his or her pace, consistent with the medical restrictions as allowed for in a “Modified Job Offer” or a “Limited Duty Job” as crafted in cooperation between (usually) three parties – the Postal Worker, the U.S. Postal Service, and the Department of Labor, Office of Worker’s Compensation – the injured Postal Worker was able to perform his or her job well, and remain productive.

Times have changed.

With the accelerated initiation and imposition of the National Reassessment Program, the Postal Treadmill has rapidly increased to exponential speeds, to the extent that most Postal Workers who have occupied a “Modified” or “Light Duty” position are asked to get off the working treadmill completely, and go home.  While filing for OWCP benefits is an option, such payments are tenuous and temporary at best, and at worst, will be denied. While Worker’s Compensation benefits pay well, the issue for the Postal Worker sent home because the U.S. Postal Service has found that a “search of its available positions” all of a sudden has resulted in a failure to find “available work” for the injured Postal Worker, is whether or not such a Postal Worker may qualify for Federal Disability Retirement benefits under FERS or CSRS.

The short answer to that question is, “Yes, in all likelihood”.

The Postal Worker needs to understand that, even during the time that he or she was working at a “Modified Job”, or a “Limited Duty”, that same Postal Worker was always qualified and eligible for Federal Disability Retirement under FERS or CSRS.

How could this be?

A person who is working in a “temporary” light duty position was never technically  “reassigned” to a new permanent position.   That same Postal Worker continued to remain in the same official job-slot, as reflected by the PS Form 50.  As such, the “Modified” or “Light Duty” job was always just a fiction.  It was a “made-up” position.  The fact that under the National Reassessment Program, the U.S. Postal Service could all of a sudden do away with all such positions, only proves the point:  There never existed a “Modified” or “Light Duty” position; it was always the same position, but on a separate piece of paper, the three parties involved – the Postal Worker, the Department of Labor/Office of Worker’s Compensation, and the U.S. Postal Service – simply “made up” the fictional position.

There is legal precedent already in place which establishes that a Postal Worker who occupied a modified or light-duty position is nevertheless eligible for Federal Disability Retirement benefits.  It was addressed by the Federal Circuit Court in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001) — a case which I have previously discussed on many occasions, but one which is important to go over again.  In the case of Bracey, the Federal Circuit Court outlined the applicable provisions governing disability retirement, saying that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.”

It is this last point (Number 3) which is important to ponder and consider.  For, if the Agency is unable to accommodate the Postal Worker, and being placed in a “Modified” or “Light Duty” position does not constitute an “accommodation” (because there never was such a position to begin with), then the Postal Worker would be eligible for Federal Disability Retirement benefits under FERS or CSRS (assuming that all other criteria of eligibility are met).

Let us consider this further.  In Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, in order for such reassignment to be an “accommodation”.  The Court went on to say:

“We Agree with Mr. Bracey that OPM’s argument fails, because the term “vacant position” in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position.  A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.”  Id. at p. 1359
Then, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.”  Id. at 1360.

This is precisely what has occurred to the Postal Worker on the treadmill all of these many years – of NOT being reassigned to a new permanent position, but merely working in a temporary, light duty position. Furthermore, for the Postal Worker, the case of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343,  10, 12-14 (2003) clarifies it even more, where the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “‘subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties.” Id.,  14. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.” Id.

Sound familiar?  Sound like the Postal Worker who has been sent home under the National Reassessment Program?  For the Postal Worker who has been occupying a Modified or Light Duty position all of these many years, you may have thought that you were in an “official” position.  If that were the case, then that same Postal Worker would not be able to be sent home today.  The reality is that no such position ever existed.  The Postal Worker was never in an “official” position, other than the position which he or she always occupied:  that position which required you to perform all of the essential elements of a Clerk, a Letter Carrier, a Rural Carrier, a Mail Processing Clerk, a Distribution Clerk, a Mail Handler, an Electronic Technician, a Maintenance worker, a Sales, Service & Distribution Clerk, etc.

But since the Postal Worker on the daily treadmill was never able to perform all of the essential elements of the “official position”, it logically follows that the Postal Worker was always eligible – even throughout the entire time of working in a “Modified” or “Light Duty” position – to file for Federal Disability Retirement under FERS or CSRS.  Thus, for the Postal Worker who has been sent home, or is in danger of being sent home, because of the National Reassessment Program, a viable option to consider is to file for Federal Disability Retirement under FERS or CSRS.  You were always eligible; you just didn’t know it.

5 thoughts on “The Postal Treadmill: Taking the option of USPS Disability Retirement

  1. I am constantly being sent home by my postmaster saying there is no work for me with my restrictions and using up my sick time for no reason. I have worked on a bid that was vacant and I got by seniority for years. I have been accomodated by District Reasonable Accomodations Committee and not being allowed the 2 hours of sit down work which is a related duty. I am being sent home even though the work is available as well as the window is open and the lines are out the door. If I am being forced to retire on Federal Disability, please tell me how to go about it because this is insanity at this ofice. Thank you!

  2. I believe any wage loss is still considered that the federal employee to be still disabled because loss of wages constitutes not fully restored to gainful employment.
    How is this different from a disabled federal employee who is allowed to work and make up to 80% of their earnings, plus their old earnings??? Ugh!

  3. My father has worked for the post office since 1994. Since, he has had knee replacement (from a walking route). shoulder surgery (from the weight of the bag), a heart attack, and two strokes on his route (from stress). Recently his Post Master has been pushing him and and telling him he is too slow. The Post Master has also admitted ro father (who is 65yrs) that he is trying to get rid of my father. My father is a PTF since he did a mutual transfer to FL. From OH. They have someone watching my father everyday to make sure they catch him screwing up. He has talked to some of the Union reps and one told him to retire and the other told him not to. I don’t know why the conflicting advice. Now just shy of his 20yr Tenure they are trying to fire him without retirement. My father does not know how to use a computer and I know nothing about the union, government or the Post Office. Can some please tell me how to help my father?!?!?!

  4. He can retire with full benefits because of his age. Because of his age he cannot be held to any time standards on the street, although he will and is being pressured by his supervisor. Have him file a grievance through his union steward to cease the harassment. If that fails, there is hostile work environment claim through DOL, continue to do what he is doing and just ignore the supervisor, as long as he is doing his job, or retire now or when 20 years is met.

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