The Merit Systems Protection Board is aiming to complete 1,000 cases in fiscal 2023. David Talukdar/Getty Images
Agencies Are Facing New Restrictions for Firing Feds Injured on the Job
In many cases, employees have a right to restoration if they can recover physically.
The federal employees appeals board is setting new precedents restricting when agencies can fire employees who were injured on the job, issuing new rulings on cases that languished for years while the agency was rendered partially incapacitated.
In one case decided last week, the Merit Systems Protection Board ruled agencies cannot fire employees for being physically unable to perform their duties if they recover before the dismissal is finalized. In a second, the board ruled agencies must conduct a thorough review for jobs employees may be able to conduct even if they are only partially recovered from their injury.
In 2016, the Homeland Security Department attempted to dismiss an electrician who had injured his ankle on the job for an “inability to perform the duties of his position” with “no foreseeable end in sight.” Under the Federal Employees Compensation Act, agencies must restore employees to their positions if they recover within one year of the on-job injury. After such time, they must only provide priority consideration for openings.
The electrician did not fully recover until more than a year after his injury, but he received his doctor’s clearance to return back to work while his case was pending before an MSPB administrative judge. While DHS argued it should still be able to fire him because he missed the one-year window, the judge ruled—and the central board confirmed—the firing cannot go through in the first place because it is no longer “in the efficiency of the service” to carry it out.
The board was unable to rule on the case while it lacked a quorum for five years, but ordered DHS to provide the electrician back pay with interest dating back to his proposed dismissal.
Tristan Leavitt, the lone Republican on the board, issued a dissenting opinion, saying the agency would face an undue burden if it had to wait for the nearly two years it took the employee to recover without finding a replacement.
“In my view, requiring the agency to bear the brunt of this substantial absence is unreasonable and contrary to efficient business operations,” Leavitt said.
In 2014, meanwhile, a U.S. Postal Service employee was injured and able to return to work with certain restrictions as prescribed by his doctor. Under the federal employees workers’ compensation law, agencies must take certain steps to restore injured workers who only partially recover to comparable positions. They must, for example, look within the local commuting area to find a job the employee can still do.
MSPB ruled in order to demonstrate impropriety by the agency, partially injured workers must show they were injured on the job, can still perform a less physically demanding job and were arbitrarily or capriciously denied a request for restoration. The postal employee met that standard, MPSB found, because USPS only searched for a position for him at the same facility at which he worked. It should have cast a wider net and searched for any acceptable position in the larger area.
The proper remedy, the board decided, was for the Postal Service to conduct a retroactive search and provide back pay if it finds a job to which the employee could have been assigned.
The quasi-judicial MSPB had a record-high 3,500 cases pending in March 2022 when Leavitt and Ray Limon were sworn in as board members and its quorum was restored. As of December, the board has decided 750 cases, reducing the backlog by about 20%. Only a small percentage of those—including the workplace injury cases decided last week—set new precedents.
At its current rate, it would take MSPB five years to address the backlog before it could even get to the cases that will have built up in the meantime. The board is promising to pick up the pace, however. In June, Cathy Harris joined the board as its third and final member, a step Limon and Leavitt had said would be key to quicker adjudication. The board is aiming to complete 1,000 cases in fiscal 2023. It is also piloting a Rapid Assessment Mediation Program with the Federal Mediation and Conciliation Service, which will have two full-time employees dedicated to identifying cases for rapid resolution.
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