OPM moves to implement long-awaited retirement fix for federal first responders

The Office of Personnel Management is set to propose new rules this week implementing a 2022 law aimed at reforming retirement benefits for federal first responders who are injured during their service and forced to pursue jobs elsewhere in government.

Federal workers in professions like law enforcement and firefighting participate in the federal government’s defined benefit retirement program on an accelerated basis—in exchange for paying more toward their pensions each paycheck, they become eligible for their full annuity once they have served 20 years and reached age 50. They are also subject to mandatory retirement at age 57.

But if a federal first responder is injured on the job and unable to continue in their current role, they lose access to the accelerated retirement timeline, despite the increased payments they have already made along the way.

A proposed rule set for publication Wednesday in the Federal Register would implement the First Responder Fair RETIRE Act, a 2022 law aimed at fixing this flaw. The legislation allows first responders forced to take a job elsewhere in the federal government to continue to pay accelerated contributions and reach retirement when they originally planned. And it grants feds the chance to be refunded the extra half-percentage point of their salary that went toward retirement if they leave federal service altogether prior to reaching retirement age.

The regulations establish criteria by which an employee may be eligible to retain their accelerated retirement timeline after returning to federal service following an injury: the employee must be serving as a law enforcement or Customs and Border Protection officer, firefighter, air traffic controller, nuclear material courier, or members of the Capital or Supreme Court police; their injury must be the “direct result” of something that happened while they were performing their duties; they must be “permanently unable” to serve in their original post; and they must not yet be eligible for voluntary or mandatory retirement.

But OPM hesitated at implementing Section 2 of the law, a “sense of Congress” statement in favor of retaining national security workers and their institutional knowledge.

“It is in the best national and homeland security interests of the United States for federal agencies to retain the specialized knowledge and expertise of individuals who suffer an injury or illness while serving in a covered position (as defined under the amendments made by this act),” the law states. “Federal agencies should ensure, to the greatest extent possible, that an individual who can no longer carry out the duties of a covered position, and is reappointed to a position in the civil service that is not a covered position, is reappointed within the same federal agency, in the same geographic location, and at a level of pay commensurate to the position which the individual held immediately prior to such injury or illness."

"Section 2 provides guiding principles for interpreting the statute, but it does not convey authority to issue regulations to achieve the stated objectives or to take other actions not otherwise permitted by law,” OPM wrote. “OPM has broad authority to regulate the [Civil Service Retirement System] and the [Federal Employees Retirement System]. Nonetheless, that regulatory authority is limited to regulations that are necessary to ‘carry out’ subchapter III of chapter 83 (the CSRS law) and chapter 84 (the FERS law). Section 2 is not part of those laws.”

Nonetheless, OPM said it would seek to implement at least the second half of the sense of Congress statement through other regulations governing workplace injuries.

“However, the Sense of Congress can be connected to the requirements in . . . a provision in the federal employee workers’ compensation law that provides for reemployment and retention rights for individuals who resume employment after overcoming injury or disability,” the rule states. “[If] it is not possible to reemploy the employee in a position in the same employing agency, that agency should seek OPM assistance with placing the employee.”

OPM is soliciting public comments on its proposal until September 30.