| Read Time: 5 minutes | Federal Retirement

Applying for Federal Disability Retirement

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 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, the employee will not be entitled to disability retirement benefits. The new job, however, must be at the same grade or pay level 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. 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 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 four 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. After the agency completes that certification, the employee must review and sign it, attesting that it is accurate. The agency also must complete the Agency Checklist of Immediate Retirement Procedures, which is part of Form 3107. 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 various forms, some to be completed by the applicant and others to be completed by their physicians or employer. 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 the employee’s activities, such as lifting or standing limits, the doctor must describe those restrictions.  Next, the employing federal agency must complete forms that describe whether the employee’s disability may be accommodated. The employee’s supervisor must complete Standard Form 3112B, Supervisor’s Statement, to indicate the employee’s job performance, attendance, conduct, and accommodation and reassignment efforts. The federal agency must complete Standard Form 3112D, Agency Certification...

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| Read Time: 4 minutes | Federal Retirement

Can You Lose Your Federal Retirement If Fired?

In addition to competitive pay, federal employees enjoy good benefits and a generous pension. What’s more, federal employees with at least one year of service have significant rights with respect to their job security. Federal employees have a reputation for being hard to fire because of these rights and the corresponding processes. Nevertheless, agencies may fire federal employees for a variety of reasons, including poor performance, misconduct, or downsizing. If you’re a federal employee, you’ve probably wondered, can you lose your federal retirement benefits if fired? How Federal Retirement Benefits Work The Federal Employee Retirement System (FERS), administered by the Office of Personnel Management (OPM), awards retirement benefits to eligible employees. FERS covers employees who started their service with the government after January 1, 1987. The Civil Service Retirement Act (CSRS) covers federal employees who started working for the government before that date. FERS is a retirement program that provides benefits from Social Security, a Thrift Savings Plan (TSP), and a Basic Benefits Plan. The first two are transferable to other jobs if a federal employee leaves before retirement. These retirement benefits fully vest in employees after five years of service, though annuities won’t begin until an employee reaches minimum retirement age (MRA). For example, the MRA for employees born in 1970 or later is 57. Although the eligibility rules vary slightly depending on service length, federal employees with more than 10 years of service receive an annuity immediately upon reaching their MRA. Employees with 5-10 years of service can receive an annuity starting at age 62.  Federal employees with at least 10 years of service can elect to take an immediate retirement or defer it. FERS reduces immediate retirement benefits by 5% per year for each year the employee is under age 62. Disability and early retirement may have slightly different timelines depending on the employee’s age and years of service. If you have questions about your federal retirement benefits, a federal employment lawyer can provide advice on your eligibility and the benefits available to you. Do Federal Employees Lose Their Retirement If They’re Fired? The short answer is no. Unfortunately, the misconception that you can lose your federal retirement if fired persists even among federal employees. Many employees incorrectly believe that they will lose their federal retirement benefits if the agency fires them. However, the truth is that federal employees whose retirement benefits have vested are all but guaranteed to receive those benefits, subject to a few exceptions. Employees unaware of this may be tempted or pressured to resign if they know they are about to be fired. These employees are often under the wrong impression that by resigning, they can save the benefits they would otherwise lose. This was exactly the situation in Morrison v. Department of the Navy. In that case, the Department of the Navy alerted an employee that an adverse employment action was pending against him. The Department urged him to resign to avoid losing his retirement benefits. Ruling on the case, the Merit Systems Protection Board (MSPB) noted that retirement benefits earned over the course of a federal career “are generally available upon separation from federal service, even when the separation is agency initiated.” To be clear, this means that when an agency fires a federal employee—whether for cause, poor performance, reduction in force, or otherwise—that employee remains entitled to any vested retirement benefits. There are very limited exceptions to this rule (discussed below), but for the vast majority of federal employees, they will never be an issue. How Federal Employees Can Lose Their Retirement Benefits As mentioned above, there are only a few narrow circumstances in which a federal employee will lose their retirement benefits. Under 5 U.S.C. § 8312, federal employees forfeit their retirement benefits only if they are convicted of one or more specific federal crimes. There are more than 20 in total, each covering an act against the national security of the United States, including: Gathering, transmitting, or losing defense information; Espionage; Treason; Enlisting to serve against the United States; Aiding the enemy; Disclosure of classified information; and Perjury under federal law. Related statutory sections cover additional crimes that would render a federal employee ineligible for benefits. These include: Fleeing the United States to avoid prosecution; Refusing to testify before a federal grand jury about involvement with a foreign government or other interference with national security; and Falsifying information on an employment application about the employee’s previous association with groups advocating for the overthrow of the government. Federal employees who do not commit any of those crimes don’t have to worry about losing their benefits. Can Federal Employees with Voluntary Early Retirement Lose Their Retirement Benefits If Fired? The Voluntary Early Retirement Authority (VERA) allows government agencies to temporarily reduce the minimum age and service requirements for retirement benefits. Agencies usually use VERA to offer employees an incentive to retire voluntarily, often during a restructuring, downsizing, or reorganization. Rather than involuntarily reducing the number of employees at the agency, it may make VERA offers or Voluntary Separation Incentive Payments (VSIP) to willing employees. Unlike with FERS or CSRS, federal employees fired for poor performance or misconduct cannot take advantage of discontinued service annuities under VERA. However, they may still be eligible for a deferred benefit. Federal employment lawyers familiar with government retirement plans can help you assess your options. If you accepted a voluntary early retirement offer from a government agency, a federal employment lawyer can also advise you of your rights moving forward. Hire a Federal Employment Attorney The Law Office of Aaron D. Wersing has been helping federal employees with their retirement and disability benefits for many years. During that time, we’ve helped hundreds of clients reclaim their jobs, stop discrimination, and resolve other issues in the workplace.  If you resigned based on false information about the status of your retirement benefits, we can help. Contact us today or call us at 833-833-3529 for a free case review.

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| Read Time: 6 minutes | Federal Retirement

What Is a FERS Disability Retirement Calculator?

A FERS disability retirement calculator is exactly what it sounds like. It is a tool you can use to calculate the amount of payment you will receive if you retire due to a disability. Of course, this calculator tool is applicable only if you are a federal employee retiring through the FERS disability retirement program.  How Does a FERS Disability Retirement Pay Calculator Work? A FERS disability retirement pay calculator works just as any other calculator does. You give the calculator a set of inputs and parameters, and the calculator gives you an answer. The output could be your annual payment (referred to as an annuity). Or it could be your monthly or weekly payment. On the other hand, your output could be the total amount of money you will receive over X amount of time (36 months, 20 years, etc). It all depends on what you ask the calculator to give as its output. It is up to you.  Many of the calculations depend on your high-3 salary. OPM defines your high-3 as the highest average basic pay you earned during any 3 consecutive years of service. Your basic pay is your basic salary paid for your position. This includes salary increases for which retirement deductions are withheld, such as shift rates. It does not include payments for overtime, bonuses, etc. Further, if one’s total service was less than 3 years, the average salary is figured by averaging basic pay during all periods of creditable Federal service. The best way to find your high-3 average salary is to get a FERS benefit to estimate from your Agency. This report will show the official figures that will be sent to OPM.  While the OPM website does not have a specific calculator webtool, they publish information on how they make the calculations online. Here, we summarize those guidelines. FERS Disability Computation If You Have Reached the Age of Retirement If you are age 62 or older when you retire due to a disability, the following calculation applies. The calculation also applies if you meet the age and service requirement for immediate voluntary retirement and suffer from a disability. This calculation is known as an “earned” annuity since you have otherwise met the qualifications for retirement benefits. The calculation goes one of two ways. If you are 62 or older when you retire and have less than 20 years of service with the federal government, or are under 62 years old but qualify for immediate voluntary retirement, your annuity calculation will be: 1% of your high-3 average salary for each year of service. Thus, if you serve eighteen years, your annuity is 18% of your high-3 average salary. Your high-3 average salary is the highest average basic pay (minus overtime) you receive for three consecutive years during your employment. If your salary tops out at $65,000 for three years, that’s your high-3 salary. If your annual salary was $55,000 three years before your disability, then $65,000 per year for only two years before the disability, your high-3 average salary is the average of $55,000, $65,000, and $65,000. If you are 62 years old or more and have at least 20 years of service to the federal government, your annuity calculation is different. Your annuity calculation is 1.1% of your high-3 average salary for each year of service. So if you have 20 years of service at this point, your annuity is 22% of your high-3 average salary. Because the calculations for disability retirement for someone 62 years old or older are the same as regular voluntary retirement, it generally does not make sense to apply for FERS disability if you are at least 62 years old.  FERS Disability Computation If You Have Not Reached the Age of Retirement For these calculations, the assumption is that you are under the age of 62 at the time of retirement and not eligible for voluntary retirement at that time. There are three tiers given: The first 12 months of receiving FERS disability payments; After the first 12 months of receiving FERS disability payments; and Once you reach age 62 (at this time, OPM will recalculate your annuity to match a regular FERS retirement annuity). For the first 12 months, your annuity calculation will be as follows: Your base annuity is 60% of your high-3 salary. If you receive social security, the total amount of your social security payment is subtracted from your FERS annuity as a 100% offset. If your “earned” FERS annuity is greater than this amount, your earned annuity will be your annuity payment. After the first 12 months, before you reach age 62, your base annuity calculation will be reduced to 40% of your high-3 year salary. If you receive social security, 60% of that amount will be drawn from your annuity. Just like the first 12 months, your “earned” annuity will be your annuity payment if that amount is greater than the base annuity (minus the social security offset). Once you reach age 62, FERS will recalculate your annuity from that point on. It will be the annuity you would have had if you were able to work until the day before you turn 62 and retired under FERS. In other words, the computation reverts to the one we outlined above. Disability Annuity Reductions In some situations, your disability annuity can be reduced due to elections made during the application process. The main situation where this happens is when you are married and have a survivor benefit election. Unless your spouse consents to you electing a smaller than “full” survivor annuity (which you establish at the beginning of your employment term), your annuity faces a reduction of either 5% or 10%. If you elect survivor benefits that are 50% of your benefit, a reduction of 10% occurs. On the other hand, if you elect survivor benefits of 25%, a 5% reduction occurs. Other reasons for a reduction in your annuity include when you choose to retain health benefits (FEHB) or life...

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| Read Time: 5 minutes | Federal Retirement

What Is the FERS Disability Processing Time?

If you’re a federal employee and can’t work due to a medical condition, your employer has you covered. The federal government’s Federal Employment Retirement System (FERS) offers disability retirement benefits to employees in your situation.  But if you are claiming FERS benefits, you may wonder, What is the FERS disability retirement processing time? After getting the answer to the first question, you may then wonder, why does it take so long? Additionally, is there a way to speed up the process? If you are looking for answers to these questions, read on.  What Is the FERS Disability Retirement Processing Time? The turnaround time for a FERS disability retirement application varies from case to case. Sometimes the Office of Personnel Management (OPM) can do it in as little as three months. Other times it can take longer than a year. The average time, however, is six to nine months. Many factors affect the processing time.  Not getting a decision within a reasonable amount of time can be more than just frustrating. If you don’t have significant savings or have dependents, losing your ability to work can put you in dire financial straits. While you can’t move to the front of the line, you can help ensure you don’t have to go to the back of the line again by properly submitting all of your paperwork in line with the OPM protocol. For a more in-depth discussion of the FERS disability retirement timeline and any related issues, don’t hesitate to contact the Law Office of Aaron Wersing PLLC for help. Our firm focuses on federal employment law, so we know the ins and outs of FERS disability retirement. With our experience, we can help to ensure your application and related documents are properly filed and filled out. Our job is to help you, and we take that charge seriously. Why Does It Take So Long? Several things make this application process take a long time. These factors can also make the timeline difficult to predict in a given case. Perhaps the most important contributing factor is that the OPM, which makes these decisions, does so on a first-come-first-served basis. When you submit your application, it is impossible to know how many applications are in front of you. The number can vary widely. Also, the OPM is a sizable bureaucratic network. They are responsible for all federal employees (2.1 million in 2020). As such, the gears of the federal government can take a while to turn. This is unavoidable, but there are ways that may help expedite an application. What Else Might Make a Decision Take Longer? A very important factor in how long your decision will take depends on your status with the agency. If you have already been separated from federal service for more than 30 days when you submit your application, your application is processed quicker. This is because your application goes straight to OPM in Boyers, PA, where it gets processed and issued a civil service annuity (CSA) number. After getting a civil service annuity number, the application goes to OPM headquarters in Washington D.C., where a decision is made. Contrast this with the process that an application from someone who is still on agency roles as an employee, or within 30 days of separation. In such instances, an application will need to go through several offices before arriving at a decision. First, your application goes to the specific agency you work for to process. Then, many agencies will send your application to their centralized HR facility for further processing. After this point, your application will be sent to Boyers, PA for a CSA number.  How Does OPM Determine FERS Disability Retirement Eligibility? The following seven factors help guide the OPM in their decision-making process regarding your application. These requirements are cumulative. In other words, they all must be met. You have a diagnosed medical condition; There is a deficiency in the service your job requires, which can be a deficiency in attendance, conduct, or in the performance of at least one critical element of your position. There is a causal relationship between your medical condition and the service deficiency; The medical condition is expected to last a year or more; The condition was not pre-existing or, if it was, it did not become disabling until after you began serving in your position; Your disability cannot be accommodated; and You cannot be reassigned to another position. If the federal agency you work for can provide reasonable accommodations that will allow you to work with your present condition, they should do so. Similarly, if your federal agency cannot accommodate you in your position, it should reassign you to a different qualifying job vacancy at the agency, if such a position is available. This type of reassignment is known as the “accommodation of last resort”. If you can be accommodated or reassigned, you will not be eligible for FERS disability retirement benefits. Keep in mind that accommodation must actually accommodate your medical needs as long as it will not place an undue burden on your agency, and a reassignment must actually be to a position that you are able to perform with your medical condition and symptoms.  What Can I Do If I Don’t Get a Decision? If a decision takes too long, you may have a right to appeal. Failure to respond is essentially a constructive denial that you can appeal. An administrative law judge at the Merit Systems Protection Board (MSPB) will hear your case and determine eligibility. Follow the steps outlined below to help with the appeal process. The amount of time that is “too long” is not set in stone, so a lawyer can be very helpful in this instance. If your application is taking too long, the best thing you can do is be diligent in your follow-up. Once you submit your application, you should inquire as to your application status monthly. Document your inquiry: save emails; save any other correspondence; document phone calls; and record...

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