By William Wiley, May 20, 2020

At FELTG, we love a good hypothetical Q & A, especially a hypothetical that comes from a nice student who has attended one of our classes. Here’s an example of just such an exchange:

Greetings, I am an attorney who recently attended MSPB Law Week training. One of the key features of the training was information on how to remove an employee based on performance, and how this method was under-utilized and which the mechanics of doing so were often misunderstood.

In my office, a regular hypothetical scenario that I encounter is cases where workers are unable to perform the essential functions of their position because of physical ailments or difficulties, and a reasonable accommodation will not work because of the nature of the work involved.

What do you think about removing these employees under a performance rubric, using 5 USC 4303? Is this doable? Removing these types of employees for “Inability to Perform the Essential Functions” does not seem to have the same legal authority that a performance removal does.

Any thoughts that you have on this subject would be greatly appreciated.

And here’s our FELTG response:

Very nice to hear from you. As for your question, you have a relatively common hypothetical situation and the legal road is clear cut. It is possible to remove someone for unacceptable performance if they have a medical condition that is preventing them from performing acceptably. However, doing so adds a step beyond what you have to do to remove the person for Medical Inability to Perform.

In other words, to an employee with a disability for Unacceptable Performance, you have to prove everything you would have to prove to fire that employee for Medical Inability PLUS you have to meet all the requirements of a 432 performance removal, with no additional benefit. I would suggest just going with a Medical Inability 752 removal to avoid the extra work and the extra risk in litigation.

To remove an employee for Medical Inability to Perform, you need to prove:

1 – The employee cannot perform at least one essential function of the position. This is usually easy to do because the employee often presents medical evidence from his own physician that says he cannot perform in some way. Even a backwoods lawyer such as myself stands a good chance of winning when the evidence comes from the employee’s own health care provider.

2 – The agency considered ways to accommodate the employee in his current job so that he can perform the essential functions; e.g., reasonable accommodation. In my experience, the supervisor can usually document this consideration with a one-hour documented evaluation of the work and the reason that the function is not subject to such modification.

3 – The agency, through testimony of its disability program coordinator or a staffing specialist, documents that it looked for vacant positions being recruited for within the agency for which the employee is professionally qualified and in which the employee can perform acceptably even with his medical limitations (including consideration of  whether the position can be modified to accommodate the employee’s disability). The job search should be initially at the employee’s current grade. If none are found at that level, then at lower grades.

Assuming the job search comes up empty, at this stage you can initiate a Medical Inability to Perform Removal. Were you to instead pursue an Unacceptable Performance removal, you’d still have to do all of the above to prove that you attempted to accommodate the employee’s disability PLUS you’d need to prove that you properly initiated an opportunity to demonstrate acceptable performance period (DP), that the supervisor met with the employee to assist him during the DP, that the employee indeed performed unacceptably during the DP, and that the agency’s performance plan was approved by OPM. There’s no reason to take the performance route when the medical inability route works just as well.

For more on this, you may want to consider enrolling in FELTG’s next virtual seminar that addresses medical issues like yours, Absence, Leave Abuse & Medical Issues Week, July 13-17. Good luck out there. [email protected]

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