A No-Good-Option Situation

By William Wiley, December 11, 2018

Here at FELTG, we pride ourselves on knowing the way out of most every civil service law difficulty. Some answers take more steps than we’d like, but eventually we can help a supervisor get her hands around just about any difficult employee situation. Recently, however, we got asked for advice regarding a problem employee case, and although we’ve come up with a solution, we really don’t like it very much. See if you can do better than we did.

1. The employee has developed both mobility and concentration problems. She falls down at work even though she uses a walker. On three occasions, coworkers have had to call paramedics to her aid. She cannot carry the files she needs to do her job. She cannot carry her personal belongings to her desk. She relies on coworkers to do the carrying for her. She makes mathematical errors in her timekeeping work. She is late accomplishing tasks.
2. Her supervisor informed her that her medical limitations were preventing her from performing her job satisfactorily and asked if she would obtain a medical evaluation of her disabilities by her physician to identify any accommodations that could be made. Her physician responded that she was medically able to perform all of the essential functions of her position.
3. After the medical evaluation, she continued to be unable to perform her work without the assistance of coworkers and otherwise in a satisfactory manner. Her supervisor again requested that she obtain disability accommodation information from her physician. The employee failed to do so.

That’s where we got the call for help. In the old days, the answer was easy: Send her for a fitness for duty evaluation by an agency-selected physician who is not likely to rubber stamp that she can do her job. Obtain a more realistic evaluation of her limitations, determine whether they can be accommodated, and assuming that they cannot, remove her for Medical Inability to Perform.

Unfortunately, today we don’t have that option. As you know if you’ve been to our famous FELTG Absence, Leave Abuse, and Medical Issues Week seminar (next offered March 25-29), OPM abolished the fitness for duty regulations back in 1983. Since then, agencies have been without the authority to direct an employee to undergo a medical evaluation except in three limited situations, none of which apply in this case. The FFD option has been foreclosed.

To our read, that leaves the supervisor with two options, neither of which feels particularly good:

1. In spite of the employee’s physician’s determination that she can perform her duties, reach the conclusion that she cannot based on a lay person’s observations of her limitations. Determine that she is medically unfit to perform one or more essential functions of her position and fire her for Medical Inability to Perform. Or,
2. Document her failures at work, relate them to one or more critical elements, then initiate a performance demonstration period (PIP) to give her an opportunity to perform. Document her failures during the demonstration period, then fire her for Unacceptable Performance.

Option A runs the risk of lay evidence of medical inability being contradicted by the employee’s physician’s professional opinion that the employee has no medical limitations. Option B seems cruel in consideration of the employee’s obvious medical infirmities. If the employee would accept Option A, she’s almost guaranteed a disability retirement when she applies to OPM. If the agency decides it has to go with B, there’s no similar almost-guaranteed disability retirement.

Here at FELTG, we feel bad for the employee. We also feel bad for the supervisor. It’s just a darned shame that OPM believes it has to constrain an agency’s ability to require an employee to undergo a medical examination. EEOC has said that it is legal for an employer to require an employee to undergo a medical examination if it has a reason for doing so that comports with a “job-related business necessity.” Were that the standard that OPM would allow us to apply, it would yield a much better resolution than either A or B, above. Wiley@FELTG.com