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Postal Employees, FERS & CSRS Disability Retirement, the National Reassessment Process, and a Sense of Betrayal

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     Is loyalty a man-made convention?  Is it merely the creation of lords and kings to fool the populace into supporting a mirage?  For, cannot loyalty be purchased?  Cannot the powerful grant enough gratuities to garner the loyalty of the guardsmen?  Ah, but will such loyalty last, or will it wait in the quiet of nightfall to see from whom a better price might be paid?  Such loyalty shifts like the sands of summer.  A convention built upon a convention will indeed crumble.  Loyalty must be built upon character, and character upon the integrity and reputation of a man over his entire lifetime.

    — From, Kings and Noblemen

 

     Having spoken to thousands of Postal employees over the past decade, the common thread which runs throughout the conversations concerning preparing and filing a Federal Disability Retirement application under FERS & CSRS, is an undertone of resignation, resentment and realization towards a corporate culture of disloyalty and distrust.  The Postal Worker today is expected to be hyper-efficient, to work and produce more within a restrictively prescribed timeframe, to perform with optimal productivity, and concurrently to maintain a resonance of familiarity, small-town folksiness, and a service-oriented courteousness in communities across the United States. 

     In a competitive economy which has had to weather the advent of faxes, emails, attachments to emails, etc.; where Federal and State bureaucracies have expressed long-range goals to attain a “paperless” system of administrative processing; and where budget cuts and complaints about the public sector wasteland of taxpayer funds has reached a critical mass of citizen revolt; within the context of such economic, financial, technological and bureaucratic turmoil, the U.S. Postal Service has been expected to remain “competitive”.  But “competitive” can be interpreted in different ways.  Unfortunately, in the prevailing corporate culture, it is always gauged and measured in the short term, based upon quarterly financial projections.  What happens 5 or 10 years hence is an irrelevancy; whether the U.S. Postal Service posts a profit or a loss in the next quarter is the quantifying meter of success or failure.

     Management often gives lip service about how they benefit from “listening” to the workers that constitute the backbone of the U.S. Postal Service – the Letter Carriers, Clerks, Maintenance workers, Mechanics, and even some mid-level supervisors.  But listening without resultant actions is merely an attitude of patronizing vacuity.  Listening must be purposive and purposeful; and if the National Reassessment Process is the best that the U.S. Postal Service can come up with as the solution to maintain the corporate competitive edge in this complex, technological universe, then “listening” had absolutely no positive impact upon Management.

     The National Reassessment Process has been a devastating disaster – both for those affected, and upon the viability and survival of the U.S. Postal Service.  America’s binary strength and weakness has always been its ability to move beyond the present crisis, and to adapt quickly to the vicissitudes of economic turmoil.  But the flip side is that corporations, bureaucracies and organizations look to the short term as the metric for success; long-term planning results in a future-oriented view for the survival of the company.  One only needs to, by way of metaphor and analogy, look at how the architecture of churches has evolved over the past 2 centuries.  Once, they were built to last for centuries; now, they are constructed to survive the present lifespan.

     The U.S. Postal Service is on a path of progressive deterioration and self-destruction.  The National Reassessment Process is simply a symptom and indicator of that destruction.  By openly discarding all Postal workers with medical conditions, disabilities and physical limitations, by asserting that there is no identifiable work available for such workers, and to expect all such workers to file for and be placed on the compensation rolls of the Office of Worker’s Compensation Programs, they have accomplished two (2) goals:  First, they have succeeded in disheartening the entire workforce by declaring that loyalty to the organization is no longer a consideration of employment, and Second, that there is no long-term plan for the Postal Service to survive in this economy, and only the short-term, quarterly profitability margins will be relevant. 

     For, ultimately, the long-term viability of an organization is dependent upon the loyalty of its workforce.  Loyalty must be fostered and groomed.  It is, moreover, a tenuous and sensitive element of a business culture – one of those intangible business assets which cannot be quantified by quarterly profit reports, but through the economic indicators of productivity measures, over several years.  By undermining the essence of loyalty – of how an organization treats its employees both during profitable times, as well as through trying economic downturns, and especially how it attempts to meet its employee obligations when a worker gets injured or suffers from a medical condition – the U.S. Postal Service has effectively spelled out its own future.

     Fortunately, all Postal workers fall under the Federal system of FERS (Federal Employees Retirement System) or CSRS (Civil Service Retirement System), which includes Federal Disability Retirement benefits.  While the National Reassessment Process attempts to force all Postal Workers to file for the Department of Labor, Office of Worker’s Compensation Program benefits, the problem with OWCP is that it is not a retirement system, and will not last forever.  As has been stated previously on many occasions, OWCP is a system of compensation intended to rehabilitate the Postal employee for a prescribed, limited amount of time, on a temporary basis, in order to return the Postal Worker back to its formerly productive job.  During the time that a Postal employee is receiving Temporary Total Disability, he or she cannot work at another job, and earn any wages – even if the worker wanted to. 

     Federal Disability Retirement benefits is a viable alternative to OWCP benefits – but an alternative which does not necessarily need to be viewed as a strict dichotomy (i.e., either Worker’s Comp or Federal Disability Retirement benefits), but a benefit which can be seen as a “back-up” system if and when OWCP benefits are terminated.  If a Postal Worker (or any Federal worker, for that matter), suffers from a medical condition which will last a minimum of 12 months, and the medical condition prevents one from performing one or more of the essential elements of one’s job, then it is time to file for Federal Disability Retirement benefits under FERS or CSRS.  For the Postal Worker who is, or will shortly, fall under the National Reassessment Process, the “writing on the wall” is indeed already in print:  The U.S. Postal Service doesn’t have a future for you, and it is time to consider filing for, and obtaining, Federal Disability Retirement benefits under FERS or CSRS.  The future is now – for the Postal Service employee, to think of another career; for the corporate culture of the U.S. Postal Service, to remain in red ink for the foreseeable future.

The Postal Treadmill: Taking the option of USPS Disability Retirement

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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.

The U.S. Postal Disability Retirement: OWCP, SSD, NRP, Etc.

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Nothing works in a vacuum.  Issues surround medical disabilities, the Postal workforce, Social Security Disability benefits, and Federal Disability Retirement benefits, as well as temporary total disability benefits received from the Department of Labor, Office of Worker’s Compensation Programs — they all intersect in one way or another, and the intersection of all of the issues create a maze of confusion which is often difficult for the Postal worker to successfully maneuver through the multiple landmines, dead-ends and potential traps.

Such intersecting difficulties also arise in what the Postal Service has initiated in the last few years — the “National Reassessment Program” — a euphemism for a massive attempt to get rid of anyone and anyone who is not fully productive.  Under this program, the U.S. Postal Service is essentially getting rid of all light-duty assignments; and, of course, such a program intersects with Federal Worker’s Comp, because many light-duty or “modified duty” employees are under the umbrella of OWCP-offered work assignments and modified positions and duties.  People are sent home with the reason given that there is no longer any “light duty” jobs; they are then instructed or forced into filing for OWCP benefits; whether Worker’s Comp will actually pay for temporary total disability is a big question mark.

Ultimately, I believe that the answer will be found in filing for OPM Federal Disability Retirement benefits. The NRP (National Reassessment Program) is simply a macrocosmic approach of a large agency (the U.S. Postal Service), mirroring a microcosmic approach (the approach of most agencies towards individual Federal or Postal employees who have a medical condition which prevents him or her from performing one or more of the essential elements of one’s job) in dealing with “less than fully productive” Federal or Postal employees.  Then, of course, there is the intersecting issue of filing for Social Security Disability benefits, which you have to do anyway, under FERS — but whether one actually gets it, is another issue.  All of these issues intersect; rarely are these issues isolated; the consequential impact of all of these issues need to be viewed in a macro manner.

Sincerely,

Robert R. McGill, Esquire

To Resign or Not To Resign From the US Postal Service

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I am often asked whether or not it is okay to resign from the Post Office prior to either (1) filing for disability retirement or (2) receiving a decision from the Office of Personnel Management. A decision to resign from the Agency must be weighed very carefully, for there are multiple factors which must be considered.

I will try and outline a few of the considerations to be weighed:

(1) What advantage is gained by resigning? If it is merely to avoid the hassles of dealing with the Postal Service (the USPS may insist upon updated medical documents every couple of weeks; they may call and harass you every week; you may have an unsympathetic supervisor, etc.), then I normally advise against resigning. There is no advantage to resigning, other than the quietude of being separated from service. As an attorney, I believe that is not enough of a reason.

(2) What is the disadvantage of resigning? There may be many: Any leverage to force the Postal Service to cooperate with a disability retirement application may be lost; if your doctor has not yet written a medical narrative report (and, believe me, for some doctors, that can take months), the doctor will have to be reminded that any statement of employment impact must pre-date the date of resignation; you lose the leverage of that which the Postal Service holds most dear, for no price: your position. For the position you fill, that slot which suddenly becomes vacant once you resign, is that which is most dear, most valuable for the Agency: and to resign is to give it up without having the USPS pay any cost.

Sincerely,
Robert R. McGill, Esquire

Postal Service’s Actions Can Sometimes Be To Your Advantage

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Postal employees, there is nothing inherently wrong with an Agency offering you modified or light duty assignments. If management deems you to be valuable, they may want to modify your position in order to keep you. However, the mere fact that you accept and work at a “modified” position does not mean that you are thereby precluded, down the road, from filing for disability retirement.

In fact, most “light duty” or “modified positions” are not real positions anyway, and so you may have the best of both worlds for many years: be able to work at a light-duty or modified position, and still reserve the right to file for Postal Disability Retirement sometime in the future.

The reason for this is simple: in all likelihood, your SF 50 will not change, and you will still remain in the same, original position. As such, the “light duty” position is simply a “made-up” position which has no impact upon your ability to file for disability retirement later on. This is the whole point of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003), 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“. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.”

Analogously, this would be true in Federal, non-postal jobs, when one is offered a “modified” or “light-duty position,” or where a Federal employee is not forced to perform one or more of the essential elements of one’s official position. Further, think about this: if a Postal or Federal employee is periodically offered a “new modified” position once a year, or once every couple of years, such an action by the Agency only reinforces the argument that the position being “offered” is not truly a permanent position. Sometimes, the Agency’s own actions can be used to your advantage when filing for disability retirement.

Sincerely,

Robert R. McGill, Esquire