| Read Time: 3 minutes | Federal Employment Law

COVID-19 Paid Leave as a Federal Employee—What to Know

Since the COVID-19 Pandemic began last year, tens of millions of Americans have fallen sick with the disease. To help protect its workers and their families, the government has offered several benefits to federal workers who experience difficulties because of COVID-19.  If you’re one of the many federal employees with coronavirus, you’ve probably asked yourself, Do I get paid if I have COVID-19? The good news is that there is paid COVID-19 leave for federal workers who had the disease, been quarantined, or had to care for an ill family member. Take a moment to learn more about whether you are eligible for federal COVID-19 leave.  Is There Federal COVID-19 Leave? Yes. The latest effort to provide federal employees with leave began in March. At that time, Congress passed the American Rescue Plan Act of 2021 (ARPA). ARPA included a provision that granted federal employees up to 15 weeks of emergency paid leave (EPL) under certain COVID-19-related circumstances. As outlined by the Office of Personnel Management (OPM), employees can obtain COVID-19 leave if they meet one of eight qualifying circumstances. Here are several of those circumstances: The employee is experiencing COVID-19 symptoms; The employee is receiving the COVID-19 vaccine or recovering after experiencing side effects from the vaccine;  The employee is subject to a federal, state, or local quarantine order that is based on COVID-19; The employee received advice from a doctor or other health care provider to quarantine due to COVID-19; The employee is caring for a family member who is subject to a COVID-19 quarantine order; or The employee is caring for their child because the child’s school or place of care is not open due to COVID-19.  To receive the paid sick leave, the employee must be unable to work at their office and unable to work from home because of the qualifying circumstance. Also, federal agencies cannot force any employee to use other forms of paid leave before requesting EPL.  Limitations of Federal COVID-19 Leave Under the American Rescue Plan Act Unlike regular paid sick leave, EPL has a monetary cap. An employee will receive 100% of their salary if that salary is less than $1,400 per week. EPL provides no compensation beyond that cap. Therefore, if you normally make $2,000 a week in your federal position, you’ll only receive $1,400 for each week you use EPL.  Also, there is a small window of time to use emergency paid leave. Employees can only use EPL between March 11 and September 30. 2021. Finally, the government set aside a limited amount of money—$570 million—to pay for emergency paid leave. If those funds run out before September 30, 2021, then you cannot receive EPL.  Who Processes EPL Claims? After you request EPL from your employer, they’ll decide whether or not to accept your request. Assuming they accept your claim, they will forward it to OPM for reimbursement. However, it may take time for OPM to resolve your claim because it processes EPL claims on a first-come, first-served basis. That’s one reason why it’s important to request EPL sooner rather than later.  What If I Had COVID-19 in 2020? You cannot request EPL if you had COVID-19 last year. Before passing ARPA, the government offered federal COVID-19 leave under the Emergency Paid Sick Leave Act. After Congress passed the Emergency Paid Sick Leave Act, OPM released clarifying guidance for all federal agencies. According to that guidance, EPSLA gave employees up to 80 hours of paid leave if they were in quarantine, experiencing COVID-19 symptoms, or caring for a family member. EPSLA’s paid sick leave equaled 100% of the employee’s regular pay if the employee was in quarantine or had COVID-19 symptoms. Unlike EPL, EPSLA’s COVID-19 leave did not have a pay cap.  So Do I Get Paid If I Have COVID? Yes and no. There isn’t a law that gives COVID-19 payments specifically to federal employees. However, federal employees indirectly receive payments through EPL because it is paid leave. Moreover, any federal employee who made less than a certain amount of money ($75,000 for an individual or $150,000 for a couple) received stimulus checks earlier this year.  Is Your Employer Giving You the Federal COVID-19 Leave that You Deserve? Getting COVID-19 can be a devastating experience with long-lasting effects. Because of that, the new federal COVID-19 leave law grants you special rights for COVID-19-related situations. If your employer is denying you emergency paid leave or retaliating against you because of your sick leave request, they may be infringing on your rights.  At the Law Office of Aaron D. Wesing, PPLC., we work to help federal employees stand up for their rights. We have many years of experience assisting hundreds of federal employees with a huge range of federal employment problems. If you think your employer is violating your rights, contact us online or call (833) 833-3529 for a free initial consultation today. Don’t wait. Let us help you!

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| Read Time: 3 minutes | Federal Retirement

Federal Retirement and Your Service Computation Date—What to Know

Working for the federal government comes with many benefits. As a federal employee, you can enjoy regular working hours, ample health benefits, a generous retirement package, and some protections against being fired or laid off.  However, many of these retirement benefits depend on your service computation date (SCD).  For that reason, it’s essential to understand what a service computation date is and how to calculate your own service computation date.  Once you understand your service computation date, you can plan your retirement date and assess when you will be able to access certain employment perks.  What Is a Service Computation Date? A service computation date is a date used by the federal government to determine what benefits you should receive and when you should start receiving them. SCDs are applicable in both the current Federal Employees Retirement System (FERS) and its predecessor, the Civil Servant Retirement System (CSRS).  That said, there are several different SCDs. A more precise service computation date definition depends on the type of SCD. Below are the four different types of SCDs. Leave Service Computation Date  Your leave service computation date relates to your annual leave accrual. All federal employees gather annual leave at a rate of four hours per pay period during their first three years in service. After three years of service, federal employees accrue annual leave at six hours each pay period. After 15 years, the annual leave accrual rate increases again to eight hours per pay period.  You can locate your leave service computation date on Block 31 of every standard form 50 (also called “SF-50”) in your personnel file.   Retirement Service Computation Date  Your federal retirement SCD indicates when you will be eligible for retirement. As with the leave SCD, it is usually the date that you began your first federal appointment.  However, the leave SCD and retirement SCD can vary if you served in the military prior to joining the federal service. Military veterans can choose to add their time in the military to their time in the federal service by “buying back” their military time and making that period of service count towards their SCD. To do this, veterans must submit a “deposit” equal to a small percentage of their military base pay when they were on active duty.  Thrift Savings Plan Service Computation Date  The Thrift Savings Plan is a savings and investment retirement account that constitutes one of the core pillars of FERS. The TSP allows the employee to contribute their own funds towards a retirement account. The government will then match the employee’s contributions up to a certain point. It’s almost like a 401K plan operated by the government.  5 CFR §1603 includes a vesting requirement for the funds contributed by the government. Under this requirement, the government’s contributions to an employee’s TSP only vest after the employee has three years of service.  The TSP service computation date represents the date that a TSP participant begins to fulfill the three-year vesting period.  Unlike the retirement SCD and leave SCD, the TSP SCD does not include prior military service.  Reduction in Force Service Computation Date  Although rare, federal agencies occasionally lay off employees through a reduction in force (RIF). The agency determines who to lay off first according to seniority. The earlier your RIF SCD, the lower the chance that your agency will lay you off.  Unlike the other SCDs, your RIF SCD can be adjusted by your performance ratings over the previous four-year period. Your appointment type can also affect your RIF SCD. How Can I Calculate My Service Computation Date?  Now that we’ve discussed the concept of the various service computation dates, you might be wondering, What is my service computation date? As you might be able to guess by now, the answer depends on which service computation date you are trying to calculate.  The leave SCD is easy to obtain because it is listed on your SF-50. However, the other SCDs are harder to calculate because they are affected by factors like prior military service and past performance.  For more information on your SCD, you should either contact your human resources office or a federal employment attorney.  Are You Considering Whether to Sue Your Federal Employer? Federal agencies are far from perfect. A mistake by your employer could easily affect your service computation date and your access to government employment benefits.  If you think that your federal employer has incorrectly calculated your SCD or is wrongly denying you benefits, contact the Law Office of Aaron D. Wersing, PLLC.  Over the years, we’ve helped hundreds of federal employees with a wide variety of federal employment problems. We are committed to protecting the rights of federal employees. Don’t hesitate to contact us or call (833) 833-3529 for a free initial consultation today. 

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| Read Time: 3 minutes | Federal Employment Law

Guidelines for Federal Workplace Drug Testing

Although being a federal employee has many benefits, it carries certain responsibilities as well. One of these obligations is to not use illegal drugs. To ensure that federal employees comply with this restriction, the government sometimes requires them to receive regular drug testing. In other situations, the government requires employees to be drug tested before starting a position.  However, there isn’t one clear-cut approach to drug testing. The exact federal employee drug testing policy varies from one position to the next. Because the rules around federal employee drug testing are far from straightforward, it’s critical to learn about drug testing laws to protect your rights.  A Brief Background of Federal Drug Testing Laws Prior to the 1970s, drug testing was unheard of in the United States. However, this changed during the Vietnam War. High levels of drug usage amongst American soldiers abroad and throughout the growing counterculture prompted the government to launch a “war on drugs.”   In 1986, President Ronald Reagan signed Executive Order (EO) 12564, which mandated that all government employees refrain from using illegal drugs at all times. It also stated that anyone who uses illegal drugs is unsuitable for federal employment.  Common Federal Employee Drug Testing Situations Executive order 12564 defined various circumstances where federal employees could receive drug testing.  Testing Designated Positions (TDPs) Under executive order 12564, each federal agency had to develop its own federal employee drug testing policy. One part of making an agency-wide drug testing policy is designating certain jobs as “testing designated positions” (TDPs). Any employee occupying a TDP can receive a drug test at any time. Agencies typically test a certain percentage of employees occupying TDPs each month. While the exact policy varies somewhat, federal law requires agencies to test at least 30% of all employees in TDPs every 12 months.  Each federal agency is free to designate any position as a TDP. However, the Department of Health & Human Services released guidance in 2010 to help agencies determine which positions should be TDPs. According to the DHHS guidance, some positions are “presumptive” testing designated positions. “Presumptive” TDPs are those that the agency must designate as TDPs unless there is a compelling reason to not do so. Examples of “presumptive” TDPs include: Positions requiring the use, possession, or maintenance of firearms; and Positions involving the use of a motor vehicle, aircraft, or train. The DHHS’s guidance also identified “preferred” TDPs which include: Presidential appointments; Frontline law enforcement positions; Drug rehabilitation positions; and Positions requiring security clearances.  If you are in a TDP, know that you may be subjected to a drug test at any time with little or no advance notice.  Federal Government Pre-Employment Drug Tests Whether a position is considered a TDP or not, agencies can make passing a drug test a condition of employment. When that happens, agencies can mandate that job candidates receive drug tests prior to beginning employment with the agency.  When Can Federal Employees Who Aren’t in a TDP Be Drug Tested? Every federal employee, regardless of whether they’re in a testing designated position, can receive a drug test in two situations after they have begun employment.  The first situation is if there is a “reasonable suspicion” that the employee is under the influence of illegal drugs. The agency can base its reasonable suspicion on various signs, including physical symptoms of being under the influence of drugs, abnormal behavior, and an arrest for drug possession or drug trafficking offense. The second situation is if the employee is involved in a work-related or vehicular accident.  Can I Get in Trouble for Using a Drug That Is Legal in My State? Yes. This is a common issue with marijuana now that it is legal for recreational or medical use in 36 states and Washington D.C. Even if a drug is legal under your state’s laws, it can still be illegal under federal law. And because federal laws control every federal workplace, you can be disciplined for using any drug that the federal government says is illegal. What Drugs Do Agencies Test for? The most common drug classes that agencies test for are: Marijuana, Cocaine, Opiates (heroin, opium, etc.),  Amphetamines Methamphetamines, and PCP. However, agencies can test for any illegal drug.  Want to Learn More About How Federal Drug Testing Laws Affect You? Federal drug testing laws and policies aren’t really straightforward. On top of that, federal agencies are far from perfect. If your employer is forcing you to get a drug test without reason, they may be infringing on your rights. At the Law Office of Aaron D. Wesing, PPLC., we work to guarantee that federal employees get the treatment they deserve from their employers. We’ve helped hundreds of current and former federal employees over the years stand up for their rights. So if you think that your federal employer is violating your rights, contact us or call (833) 833-3529 for a free initial consultation today.

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| Read Time: 3 minutes | Federal Employment Law

What You Need to Know About Paid Parental Leave As a Federal Employee

Last year, the federal government created a new paid leave category for federal workers—paid parental leave (PPL). As part of the Federal Employees Paid Parental Leave Act of 2019 (FEPLA), most federal workers can take up to 12 weeks of PPL in connection with the birth of a child. Employees can also use federal paid parental leave for the placement of a child under their care. This includes situations like adoption and foster care.  Paid parental leave is just the latest addition to the many benefits of federal employment, including generous retirement benefits, regular working hours, and ample health benefits. Learn more about the government’s new federal paid parental leave below. Which Federal Employees Qualify for Paid Parental Leave? To use paid parental leave, you must complete at least 12 months of federal service as stated in 5 CFR 630.1201(b)(1). Furthermore, you must not be under a temporary appointment (less than one year). You also cannot be an intermittent employee.  Provided you meet these basic requirements, you are eligible to take paid parental leave under FEPLA.   When Did Paid Parental Leave for Federal Employees Come Into Effect? As the name of the bill suggests, Congress passed the Federal Employee Paid Parental Leave Act of 2019 in December of that year.  However, the rule implementing the bill’s provisions did not come into effect until October 1, 2020. This means that federal employees cannot take any PPL for any births or placements of children that took place before that date. Additionally: You may only use PPL during the 12-month period immediately following the birth or placement of your child.  If multiple children were born or came under your care at the same time, you can only use one 12-week period of PPL.  However, if you have multiple children at different times during one year, each child qualifies you for a new PPL period.  What Are My Options If I Had a Child Before the Paid Parental Leave Law Came Into Effect? If your child was born or came into your care before October 1, 2020, you can still take leave to care for them. However, you won’t receive any pay during that time.  Before FEPLA, the closest thing to a Federal employee maternity leave law or a Federal paternity leave law was the Federal and Medical Leave Act of 1993 (FMLA).  FMLA allows eligible federal employees to take leave for up to 12 weeks for a variety of medical reasons, including the birth of a child. However, unlike FEPLA, FMLA provides employees only unpaid leave. Furthermore, you have to meet the same standards for FMLA as you would for FEPLA.  Can I Use Leave Under Both FMLA and FEPLA? No. PPL is provided as a replacement for the unpaid leave provided under FMLA. However, you can use sick leave and annual leave in coordination with PPL. Do I Have to Use My Sick or Annual Leave Before Using Paid Parental Leave? No. In fact, the Office of Personnel Management (OPM)—the agency responsible for determining the personnel practices of all federal agencies—explicitly states that federal agencies cannot force their employees to take other forms of leave before using PPL.  How Do I Request Paid Parental Leave? Most federal agencies have their own paid parental leave request forms. If you intend to request PPL, contact your local human resources office to learn about the forms that your agency uses.  Please note that you must provide supporting medical documentation if your employer requests it. The types of supporting documentation you have to submit will vary from agency to agency.  That said, OPM released guidance for the kinds of documents agencies may accept. Commonly accepted medical documents include birth certificates, hospital records, and any documents that name you as a parent.  Finally, FEPLA requires that you sign an agreement promising to work at least twelve weeks of work after using PPL.  Is Your Federal Employer Giving You the Paid Parental Leave You Are Entitled To? The new federal paid parental leave law recognizes that the birth or placement of a child is a life-changing event. It’s also a stressful period that requires your full attention without the interference of work. If your employer is denying you paid parental leave or retaliating against you because you took PPL, they are infringing on your rights.  That’s why we are here. At the Law Office of Aaron D. Wesing, PPLC., we fight to protect our clients’ rights. We also work to ensure that they get fair treatment from their employers.  Over the years, we’ve helped hundreds of federal employees deal with a huge range of federal employment problems. So let us help you stand up to your employer. If you think that your federal employer is violating your rights, contact us online or call (833) 833-3529 for a free initial consultation today. 

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| Read Time: 4 minutes | Federal Employment Law

Using Marijuana as a Federal Employee Still Has Consequences (Even if It’s Legal in Your State)

Country-wide adoption of recreational marijuana laws has some people wondering if the mandatory drug test prior to employment is a thing of the past. Unfortunately, without federal legislation on the issue, the answer is likely yes for anyone seeking employment in the federal government sector. Federal laws continue to classify marijuana as an illegal Schedule 1 drug, putting it in the same category as heroin, ecstasy, and LSD.  Despite widespread approval for the plant and state regulations allowing its recreational use, those subject to federal regulations must refrain from using the substance or face consequences. Recent Federal Cannabis News In 2015, the Office of Personnel Management (OPM) advised federal agencies that under federal laws on marijuana, it is considered a Schedule 1 controlled substance. The OPM also reminded federal agencies of the rules established in 1986 by President Ronald Reagan in Executive Order 12564, Drug-Free Federal Workplace. This order stated that: Federal employees must refrain from the use of marijuana; The use of marijuana, whether on or off duty, is contrary to the efficiency of federal services; and People who use marijuana (or any drugs currently illegal under federal law) are unsuitable for federal employment.  Since 2015, public acceptance of marijuana use has continued to increase. In February 2021, the OPM issued new guidance for federal agencies designed to relax the hiring practices related to past marijuana use. Acknowledging that marijuana remains categorized as a Schedule I controlled substance under federal law, the OPM told agencies that use or possession of marijuana should not automatically disqualify the person from applying for federal employment. Instead, the federal agencies must find a nexus between the employee’s possession or use of marijuana and its impact on the integrity or efficiency of the government. What Does This Mean for Federal Employees? The OPM’s new guidance outlines the process for determining whether federal applicants using or in possession of marijuana are suitable for federal positions. Factors that agencies should look at include: Illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation; and Criminal or dishonest conduct.  As stated above, the OPM advised federal agencies that the existence of either of these factors should not automatically disqualify an applicant from consideration. Instead, agencies evaluate each individual applicant’s conduct on a case-by-case basis to determine whether their behavior will impact the integrity and efficiency of the federal government. The factors agencies must consider include: The nature of the position the applicant is seeking; The nature and seriousness of the applicant’s conduct; Relevant circumstances surrounding the applicant’s conduct; Contributing societal conditions; Absence or presence of rehabilitation; The recency of the conduct; and The applicant’s age at the time of the conduct. Additionally, the Federal OPM specifically noted that past marijuana use, including recently discontinued marijuana use, should be viewed differently than current or ongoing marijuana use. This case-by-case analysis applies not only to new applicants but also to incumbent federal government employees. Can I Use Marijuana If I Already Work for the Federal Government? You have completed the hiring process and been working for the federal government for several years. Now, are you allowed to use marijuana? Unfortunately, that answer is still no. The OPM reiterated that the mandates of Executive Order 12564, Drug-Free Federal Workplace, prohibiting the use of illegal drugs on or off duty remain in effect for all federal employees. Employees struggling with substance abuse issues should seek counseling and rehabilitation. Who is Considered a Federal Employee? Any job within the three branches of the United States Government—the judicial branch, the legislative branch, and the executive branch—is considered federal employment. The OPM reported in 2017 that the federal government employs at least 4.4 million workers. Areas of federal employment include: All military service members; Postal service workers; Department of Transportation; Department of Labor; Politicians and legislative staff; and The FBI. A common misconception about federal employment is that all federal employees work in Washington, D.C. However, this is not the case. In fact, the majority of federal government employees do not work in the D.C. area. Are There Other Limits on Marijuana Use in Legalized States? Marijuana use creates barriers for the federal employment sector, but that is not the only barrier. Student Loans Section 484(R) of the Higher Education Act of 1998 states that a student with a past conviction for possession of a controlled substance is not eligible for financial aid. Federal law still defines marijuana as a controlled substance. Therefore, a conviction for possession of marijuana can disqualify you from receiving any student financial aid. Purchasing a Firearm Federal law requires gun purchasers to fill out a federal Form 4473, which inquires about the unlawful marijuana use of the applicant. Because marijuana is still criminalized under federal law, any use of marijuana is considered unlawful. Thus, a marijuana user attempting to purchase a firearm may have his or her application denied. Furthermore, it should be noted that individuals who lie on Form 4473 can be charged with a felony. Such a charge carries a maximum penalty of five years in prison. Contact a Federal Employment Lawyer for Additional Details Navigating federal workplace requirements can be confusing and tricky, especially when federal law starkly differs from state law. Federal cannabis news may change at any time, but for right now, cannabis use still greatly impacts federal employment. Attorney Aaron Wersing has extensive experience in all aspects of federal government employment law. His familiarity with the intricacies of federal employment law can save you pain and frustration if you work in, or are applying for federal work. If you have questions, he can provide detailed explanations to address your concerns. Mr. Wersing knows that the process for protecting the rights of federal employees differs significantly from the private sector and he stands ready to fight for you. At the Law Office of Aaron D. Wersing, we are committed to protecting federal employees from having their rights abused. So contact us today to set up your free initial consultation.

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| Read Time: 4 minutes | Federal EEOC

Overview of Federal EEOC Complaint Process

No matter what your job is, you may encounter discrimination in the workplace during your career. There are several laws the Equal Employment Opportunity Commission (EEOC) enforces that protect federal employees from discrimination. But what is the federal EEOC complaint process? If you find yourself the victim of discrimination in the federal workplace, it’s important to understand your rights and how to enforce them with an EEOC complaint. Below is a breakdown of the 6-Step Federal EEOC Complaint Process. 1. Contact Your EEO Counselor Each agency has an equal employment opportunity counselor. Before filing a formal complaint with the EEOC, the first step of the federal EEO complaint process is to contact your agency’s EEO counselor within 45 days of the discrimination. Note that some agencies will use different terms for this office, such as the Office of Resolution Management (ORM) at the Department of Veterans Affairs.  The EEO counselor will provide information about how a federal EEO complaint works. At this step, your counselor will provide details about the EEO process, including approximate timelines and your appeal rights. They will usually ask for information about your claims and bases too. Where applicable, you may also have the option to go through alternative dispute resolution (ADR). This step is also when you must choose whether to file your complaint through the EEO, negotiated grievance, or the Merit Systems Protection Board (MSPB) processes, if applicable. Not all cases have this choice, but when you do, federal employees may choose only one of these two paths and the option first chosen is generally considered to be your election. If you’re unsure where you should file your federal EEOC complaint, consider consulting a federal EEOC lawyer. Understanding Which Laws the EEOC Enforces The EEOC enforces four federal anti-discrimination laws: Title VII of the Civil Rights Act of 1964, The Equal Pay Act of 1963, The Rehabilitation Act of 1973, and The Age Discrimination in Employment Act of 1967. Together, these laws protect against discrimination based on a number of characteristics, including race, color, sex and sexual orientation, religion or national origin, age, and disability. Additionally, the EEOC works to protect employees from retaliation by their superiors or agency. 2. Filing a Formal Complaint If you can’t resolve the issue through counseling or ADR, your counselor will provide you with a written Notice of Right to File Formal Complaint, and provide a final Interview. This notice gives you the right to file a formal complaint with your Agency’s EEO office within 15 days. Read the Notice carefully for instructions on where to send your complaint. Generally you can file your Formal EEO complaint by mail or email. Each complaint must be properly drafted to include at least Contact information for you or your representative; Contact information for the person the claim is against; and A signed statement describing the events you believe resulted in discrimination, including when they occurred. After you submit your complaint, will review it to decide whether to conduct an investigation. 3. Your Agency Conducts an Investigation If your Agency accepts your claims, your agency will have to conduct an investigation into the alleged discrimination. Once the investigation is complete, you may request a hearing before an administrative judge, or you can request an immediate final decision from your agency. 4. Hearing Before an Administrative Judge Like other court proceedings, an EEOC hearing involves presenting your case to an administrative judge. Each party also has the opportunity to conduct discovery to obtain additional information. At the end of the hearing, the judge will review the record and issue a decision about whether there was discrimination. In some cases, a federal employee may not need to request a hearing. Accordingly, hearings do not always happen as part of the federal EEOC complaint process. 5. Your Agency Issues a Final Decision Whether you choose a hearing or not, the final main step is your agency’s final decision. The agency will review the judge’s final order or the evidence from the investigation and notify you whether it found any discrimination. If there was discrimination, the agency may implement the judge’s orders or its own remedy. Because final decisions may not be in the employee’s favor, federal employees have the right to appeal a final agency action to the EEOC’s appellate division, the Office of Federal Operations (OFO). 6. Appealing to the EEOC You may appeal your agency’s decision to the OFO within 30 days of that decision. During the appeal process, the OFO will review the entire history of your complaint and the evidence in the record. The OFO will then issue its own determination of whether there was any discrimination. Having a federal EEOC lawyer is the best way to make sure your arguments are properly presented in this case. Contact a Federal EEOC Lawyer The federal EEOC complaint process looks long and stressful, but it doesn’t have to be. The attorneys at the Law Office of Aaron D. Wersing have years of experience representing federal employees in a variety of employment matters. If you’ve suffered discrimination and need help with your EEOC complaint, we can help. Contact us today online or at 833-833-3529 for a free consultation.

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| Read Time: 4 minutes | Federal Disability

How Federal Disability Works in 2021

One of the biggest perks of being a federal employee is having access to the government’s comprehensive benefits package. Currently, most federal employees receive benefits under the Federal Employees Retirement System (FERS). Although there are resources explaining FERS and how it works, they aren’t always as helpful as they could be. We frequently get questions from federal employees asking how to balance their medical and financial needs, and many times these employees have never heard of benefits such as disability retirement. If you are wondering how does federal disability work, read on (or reach out!). In this blog post, we hope to demystify federal disability to help you best understand your options. What Is FERS? FERS stands for Federal Employees Retirement System. This program is the modern disability program offered by the federal government. If you started your service earlier than 1987, your disability benefits will come from the Civil Service Retirement System (CSRS) instead. Most of these provisions for disability retirement are substantially the same under CSRS, so if you are a CSRS employee you can qualify for disability retirement as well.  When Am I Eligible for FERS Disability? Eligibility starts with your length of creditable service with the government. For employees covered under FERS, you must have at least 18 months of creditable federal civilian service to qualify. Note that federal employees covered under CSRS need five years of service to qualify. In addition,  Your disability must prevent you from “useful and efficient service” in your current position (in other words, you have a deficiency in your performance, attendance, and/or conduct); The expected length of the disability must be one year or greater; Your agency must be unable to accommodate your disability, either in your position or through reassignment; You must apply for disability before your separation from service or within one year after; and You must submit an application for Social Security benefits. Whether your disability prevents you from useful and efficient service isn’t always obvious. For that reason, many federal employees seek advice from a federal disability lawyer. Does FERS Include Short-Term Disability? No, FERS does not include short-term disability. FERS does not cover disabilities expected to last less than one year. Other than sick leave, annual leave, and your agency’s leave bank (if available), there are no specific benefits for short-term disability. However in many cases of a short-term disability, the employing agency may be required to provide a reasonable accommodation. Reasonable accommodations may include leave, job restructuring, telework, ergonomic equipment, or another option which would allow the employee to perform the duties of his or her position.  FERS Disability and Social Security As explained above, eligibility for FERS disability is partially dependent on the employee applying for Social Security benefits. So how does federal disability work when it comes to this requirement? Fortunately, you don’t have to receive approval for Social Security benefits to receive FERS disability; you just have to apply. You can be approved for both SSDI and FERS disability simultaneously. In such a case, you would generally receive your full SSDI benefit while receiving a reduced disability annuity from OPM.  Unfortunately, keeping track of all the eligibility requirements can be difficult, especially if you’ve never worked with federal disability benefits in the past. We’re here to help you understand the process and make it as stress-free as possible. Applying for FERS Disability As with other government benefits programs, applying for FERS disability starts with completing several forms. Generally, you must complete at least SF 3107 and SF 3112. Additionally, you will need to provide documentation that you applied for Social Security disability, and other supporting documents depending on your responses on the SF 3107 and SF 3112 forms. During this first part of the process, your supervisor will also have to provide some information about your agency, position, and accommodations made available to you (if any).  If you are still on agency roles and not separated, or are within 30 days of separation, you must apply through your agency. If you are more than 30 days separated, then you will apply directly to OPM. Once your application is submitted, the Office of Personnel Management (OPM) will review your eligibility before notifying you of its decision. What to Do If You Are Denied FERS Disability Benefits As a federal employee, you have a robust set of rights when it comes to your employment, including denial of benefits. In a case where OPM disallows your application for FERS disability, you have 30 days to file a reconsideration appeal with OPM. Note that on the reconsideration form, you may elect to submit additional information in support of your application. During this appeal, a reconsideration specialist will give your application a second review. If your reconsideration appeal is denied as well, your next option is an appeal to the Merit Systems Protection Board (MSPB). An MSPB administrative judge will review OPM’s decision to determine whether you are eligible for FERS disability. If the administrative judge also denies your benefits, you can appeal to the MSPB board. After that, you will have exhausted your administrative remedies, giving you the right to take your case to the United States Court of Appeals for the Federal Circuit. Losing FERS Disability Benefits Generally, once you’ve been approved for FERS disability you will keep your benefits as long as you remain disabled. However, OPM may require you to get periodic medical exams to continue receiving benefits. Accordingly, if you recover from your disability your benefits will stop. There are two other main reasons why you may lose your federal disability: Your income from wages and self-employment equals at least 80% of your base pay from the position you retired from; or You obtained employment in Federal service at an equivalent position. Additionally, remember that your standard non-disability FERS retirement annuity will start when you reach age at 62. As a result, your disability benefits will stop at that time and you will be switched over to regular retirement through OPM. Need Help with Your Federal Disability?...

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| Read Time: 4 minutes | FERS Disability

FERS Disability Retirement Eligibility (Are You Eligible)

Individuals often remind government workers of the advantages of their positions. But if you were for the federal government, you may at times feel trapped and without rights. This is especially true for workers who have a disability. Federal Employees Retirement System (FERS) disability eligibility is complex. Many federal employees are not aware of this program’s existence. Others, while aware, may lack proper guidance and feel hindered from accessing the benefit they are entitled to, and left without options. Attorneys skilled in assisting federal employees can help fight for your rights. Understanding Federal Employees Retirement System Disability Benefits Defining FERS  FERS stands for Federal Employees Retirement System and is a retirement plan. Most new Federal civilian employees hired after 1983 are automatically covered by FERS, whereas prior to this point most employees were covered under CSRS. Federal civilian employees also have a TSP retirement, however individuals must note that FERS and TSP (Thrift Savings Plan) are not the same. TSP is an optional retirement option, separate from your FERS pension. Understanding Federal Employees Retirement System Disability Eligibility  The United States government’s Office of Personnel Management provides a pamphlet regarding FERS disability retirement. However, it can often leave the reader more confused than confident in their understanding. FERS disability retirement eligibility is very complex. It  involves financial and legal information best analyzed by a lawyer for federal employees. The purpose of Federal Employees Retirement System disability benefits is to provide income to federal workers who: Have a disability expected to last at least one year; and Are unable to fulfill the responsibilities of their job as a result of the disability. Unfortunately, workers most entitled to FERS eligibility are often overwhelmed and facing many obstacles due to their disabling condition. Tackling Federal Employees Retirement System disability benefits may appear impossible. However, FERS disability retirement eligibility, when met, provides important rights. A Federal Employees Retirement System disability benefits lawyer knows how to fight for this right. FERS Disability Retirement Eligibility Requirements As stated above, an initial hurdle to obtaining FERS disability benefits includes proving that a disability impacts you to the point where you can’t be expected to adequately perform your duties for at least one year. That is just the start. In addition the worker: Must have paid into Federal Employees Retirement System disability benefits for at least 18 months; and Must not have declined a reasonable accommodation, such as a transfer to a job for which they were qualified, if the federal agency employing the person tried to accommodate their disability or move them to another department. Another critical item to note is that the worker must have applied for Federal Employees Retirement System disability benefits while still employed or within one year after separation from the job. Financial Impact After Proving FERS Disability Retirement Eligibility If the government approves your Federal Employees Retirement System disability benefits, the amount of your benefit will depend on intricate calculations. The amount of benefits is different for each individual. Calculating benefits currently includes an analysis of earnings at various points in the person’s career and an age review. An employee can get an accurate picture of available benefits by requesting a FERS benefits estimate from their agency. The Complexity of FERS Disability Retirement Eligibility The aforementioned is only a brief overview of examinations required regarding eligibility and a successful application for FERS disability benefits. Here some additional stipulations to note. The Injury  When determining disability, there are several medical considerations as well as exceptions. Common injuries that might support a claim for FERS disability benefits include: Back and neck injuries; Hand, shoulder, hip, or knee injuries; Eye injuries; and Amputation. Psychological conditions can also support a claim for disability benefits, though they can sometimes be trickier to document than some physical injuries. Essentially any mental or physical disability that impairs your ability to work may qualify, such as PTSD, depression, anxiety.  Alternate Job Offer Any job offer the government makes to the disabled party should be at the same pay level the person is receiving, or higher. It also must be within the same commuting area. Both of these requirements must be met to invoke the requirement that the party accept the offer, assuming it would actually accommodate the disability.  SSDI  Anyone applying for FERS disability retirement eligibility must also apply for SSDI (Social Security Disability Insurance ). However, it is not required that SSA approve the SSDI application. Other Work Income If the government provides the worker with FERS disability benefits, they cannot keep their federal job, as they proved an inability to perform the job due to a disability. However, they may be able to work in a private-sector job. There are strict income requirements regarding this option. Importance of Legal Representation for Federal Employees Retirement System Disability Benefits  Disabilities can cause tremendous stress. When a disability impacts one’s ability to work, the stress understandably increases. In some cases, those same workers begin experiencing discrimination, resentment, or retaliation in the workplace. Top-notch Federal Employees Retirement System disability benefits attorneys will offer relief and protection. Individuals should never forget that they have the right to: Seek legal advice,  Be free from retaliation, and Utilize legal protections in place. A federal employer may fail to acknowledge one’s disability or inform them of the rules regarding FERS disability retirement eligibility. Other times, the employer may discourage the worker from pursuing benefits. Also, workers may feel overwhelmed with applying for Federal Employees Retirement System disability benefits. If you find yourself in this situation, you should speak with a lawyer clients trust who is knowledgeable in Federal Employees Retirement System Disability Benefits. The Law Office of Aaron D. Wersing Attorney Aaron Wersing graduated from the Georgia State University College of Law and received the CALI Excellence for the Future Award. Since that time, he has continued a path of excellence as the founding attorney for the Law Office of Aaron D. Wersing. Aaron’s practice includes the evaluation and resolution of a diverse variety of federal employment matters. Aaron is an advocate who knows how to handle any...

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| Read Time: 5 minutes | MSPB

How to Win an MSPB Appeal (And What to Avoid Doing)

Thousands of federal employees file an appeal with the Merit Systems Protection Board (MSPB) each year. Over the past three years, only 3% of federal employees were successful. The success rate increases to 18% if you eliminate cases that settle before going to a hearing and those dismissed for procedural errors.  Below are some tips on how to win an MSPB appeal, but first you should understand how the appeal process works. What Is an MSPB Appeal? If a federal employee is subject to a major adverse action by a federal agency, such as demotion, suspension of 15 days or more, or removal, he or she can generally appeal to the MSPB (note that certain agencies and/or positions are not eligible for MSPB appeals, such as a Title 38 employee at the VA). The MSPB is a quasi-judicial federal agency. Its duties include resolving certain employment-related disputes between federal agencies and their employees.  What Is the MSPB Appeal Process? An appeal is appropriate only after the agency notifies the employee of the proposed action, the employee responds verbally or in writing in an attempt to mitigate, if desired, and then the adverse action is subsequently sustained against the employee.  Jurisdiction  Before filing an appeal, the employee must determine whether the MSPB has jurisdiction over the action and the employee filing the appeal.  The MSPB has jurisdiction to hear an appeal involving the following actions, but includes others as well: Performance-based actions, Reductions in grade or pay, Denial of within-grade pay increase, Suspensions for more than 14 days, Furloughs for 30 days or less, Denials of restoration or reemployment, Suitability actions, Reduction in force, and Misconduct actions. The MSPB will hear discrimination cases only if they are in connection with an action otherwise within MSPB’s jurisdiction. Some appeals will be heard only after you exhaust the procedures of another governing agency, such as veteran’s employment and whistleblower retaliation claims. Federal employees eligible to file an MSPB appeal include: Competitive service employees who have completed a probationary period; Employees in the excepted service, other than preference-eligible employees, with at least two years continuous service in the same or similar position; Preference-eligible employees with one year of continuous employment in the same or similar position; and Postal Service supervisors, managers, and employees engaged in personnel work with one year continuous service in the same or similar position. An MSPB attorney can help determine your eligibility to file an appeal. Filing the Appeal Timing Typically, you must file your appeal within 30 calendar days of the date of the action or within 30 days after receiving the agency’s decision, whichever is later. There are exceptions however, such as actions taken by the VA under 38 USC §714, which have a reduced deadline of 10 business days to file the appeal. If the appellant and agency mutually agree in writing, prior to the timely filing of an appeal, to use an alternative dispute resolution process, the time limit for filing the appeal is 60 days.  Format The format and contents of your appeal must meet all the MSPB’s requirements. To ensure you do this, the MSPB provides an approved form if you wish to submit your claim in writing, or you can submit your appeal online through e-Appeal Online. Hearing The MSPB will assign an administrative law judge (ALJ) to your case, who will request additional information and responses from you and the agency. The ALJ will address settlement as well, which may involve the MSPB’s MAP program. If the case does not settle previously, a hearing will take place to allow the parties and witnesses to testify. The ALJ will issue an initial decision, which becomes final 35 days later, unless a party petitions for review to the MSPB’s appellate division, known as the “Board”. Further appeal If you are dissatisfied with the ALJ’s initial decision, you may either file a petition for review to the Board or typically with the U.S. Court of Appeals for the Federal Circuit. Your appeal to the federal courts must be done within 60 days of the Board’s decision.  How to Win an MSPB Appeal? The MSPB says the most common reasons as to why employees lose their cases is because they fail to bring forth a proper case by misinterpreting the law or not providing important evidence. Here are some tips on what to do (and what not to do) to increase your chances of winning an MSPB appeal.  Request All Material Used By the Agency When an agency takes an adverse action against you, you have the right to review the material it relied on to make the decision. You should exercise this right and obtain all the material to build a strong case against the agency. To create a well-crafted argument, you need to know what information was used against you.  File on Time Timeliness of filing your appeal is of utmost importance. Do not miss the filing deadline Generally, you have 30 days from the date the action is taken against you to file your appeal. Although the MSPB may excuse late filing if you have a good reason and provide supporting documentation, this rarely happens. The MSPB processes thousands of cases each year, and it is incredibly strict about deadlines. Remember, your initial appeal form only needs to include the basics, such as the facts and legal issues of your case. The ALJ will request additional information after you file. The important thing is to get the appeal in on time. Do not file too early You can only file your appeal after the effective date of the action against you or after the agency issues a final decision regarding your performance or conduct.  File a Complete and Proper Form File with the correct regional or field office. You must file your written appeal with the MSPB’s regional or field office where your duty station is located at the time the action took place. From time to time the jurisdiction of the offices change, so check the MSPB website for the most up-to-date information. Pay attention to every detail on...

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| Read Time: 5 minutes | Federal Retirement

Applying for Federal Disability Retirement (5 Steps)

Federal employees who become disabled face significant stress. From handling pain and multiple doctor appointments to worrying about finances and an uncertain future, a federal employee can be overwhelmed. The last thing that a disabled federal employee should have to deal with is filing complex paperwork to apply for federal disability retirement benefits.  At the Law Office of Aaron D. Wersing, our federal employee disability retirement lawyers take the worry out of applying for benefits. We help our disabled-federal-worker clients so that they can focus on their health and their families. Our hands-on approach keeps our clients informed throughout the entire process, from completing the initial paperwork to the appeal of a benefit denial. We are experienced in all aspects of Federal Employees Retirement System (FERS) disability retirement benefits so that federal employees don’t have to be. FERS Disability Retirement Requirements To be eligible for the FERS disability program, federal employees must have worked in a covered position for at least 18 months. In addition, an employee must have become disabled while employed and the disability must be expected to last for at least one year. Importantly, however, a work-related injury or illness need not have caused the disability. Federal employees can apply for disability retirement benefits at any age. What Disabilities Qualify for Federal Disability Retirement Benefits? To qualify for federal disability retirement benefits, an employee must experience either a physical or mental disease or injury. The employee’s disability must prevent “useful and efficient service” in the employee’s current job with the federal government. Essentially, the federal employee must be unable to perform one or more essential job functions of their current position. If the employing federal agency can accommodate the worker’s medical condition, the employee may continue to work in his or her current position. In that case, the employee will not be eligible for federal disability retirement. Alternatively, if the employing agency can transfer the disabled employee to a different job, known as the accommodation of last resort, the employee will not be entitled to disability retirement benefits. The new job should be at the same grade or pay level and in the same commuting area. In short, the employee may apply for federal disability retirement only if the employing agency is unable to accommodate the employee’s disability. Five-Step FERS Disability Retirement Application Process There are five essential steps that a federal employee needs to follow to apply for FERS disability retirement. Step One: Apply for Social Security Disability Benefits Why? Because when a federal employee applies for FERS disability retirement, the employee must indicate whether he or she has applied for Social Security disability benefits. Remember, you do not have to be approved for SSDI, but you must apply. The applicant also must attach a copy of the Social Security application receipt or award notice to the FERS disability retirement application. If a disabled employee receives Social Security disability payments, the amount of federal disability retirement payments under FERS will be reduced. Importantly, if the Social Security Administration denies disability benefits, federal employees still may be entitled to FERS disability retirement payments. Step Two: Complete Standard Form 3107, Application for Immediate Retirement Form 3107 is available from federal personnel offices or online at www.opm.gov/forms/standard forms. Federal employees must file their application for federal disability retirement benefits while still employed with the government or within one year of their separation date.  The Application for Immediate Retirement is several pages long and asks for detailed information, including: Identifying information, Description of federal service, Marital information, Type of annuity elected, Insurance information, Other claim information, Payment instructions, Applicant’s checklist, Military service and military retirement pay information, Workers’ compensation information, and Applicant’s certification that all statements are true. Form 3107 also includes the Certified Summary of Federal Service, SF 3107-1. The employing agency completes this certification form to provide a history of the employee’s federal jobs, earnings, and FERS coverage. You can apply for FERS disability retirement before the agency completes this form. After the agency completes that certification, the employee must review and sign it, attesting that it is accurate. The agency also should complete the Agency Checklist of Immediate Retirement Procedures, which is part of Form 3107. In addition, depending on your responses to certain questions, supplemental documentation may be required, such as a marriage certificate, W-4 form, or a DD-214, for example. For guidance on how to complete the application, disabled federal employees can review the instructions that accompany the Application for Immediate Retirement. They may also read an informational pamphlet SF 3113 titled Applying for Immediate Retirement Under the Federal Employees Retirement System. Step Three: Complete Standard Form 3112, Documentation in Support of Disability Retirement Application Disabled federal employees need to provide documents that support their FERS disability retirement application. Standard Form 3112 includes five main forms, some of which are completed by the applicant and others to be completed by their physicians or agency. In general, employees use these forms to document their medical condition to show that they are disabled and  unable to perform their job duties.  The disabled employee must complete Standard Form 3112A, Applicant’s Statement of Disability. On that form, the applicant describes his or her disease or injury and how it affects current job duties. The applicant then lists the physicians and dates of treatment that can support his or her claim of disability.  Next, the federal employee must ask each doctor to complete Standard Form 3112C, Physician’s Statement. The employee should also provide each doctor with a current job description. With that job description, each doctor can state how the employee’s disease or injury affects the employee’s ability to work. In addition to completing the form, each doctor must enclose medical documentation of the patient’s medical condition on letterhead stationery. Doctors must provide copies of all medical reports detailing the patient’s symptoms and history, diagnostic tests, diagnosis, treatments, and therapies. The doctors also must indicate if and when the employee will recover. Finally, if the doctors place any restrictions on...

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