Removal for Medical Inability to Perform

A removal based on "Medical Inability to Perform" is a non-disciplinary adverse action taken under the authority of 5 U.S.C. ch. 75. While the agency may frame this action as "non-punitive," the result is the same: the loss of federal employment and career benefits. Recently, we are encountering an increasing number of inquiries concerning removal for medical inability resulting from denied reasonable accommodation requests.

The Administrative Framework for Medical Inability to Perform

The agency bears the burden of proving its case by a preponderance of the evidence (5 U.S.C. § 7701(c)(1)(B)). To sustain a charge of medical inability to perform, an agency must demonstrate a clear and direct relationship between the employee’s medical condition and observed deficiencies in work performance, conduct, or a high probability of hazard (Boulineau v. Dep’t of the Army, 57 M.S.P.R. 244, 248 n.6 (1993)). In some cases, the employee, through applying for Reasonable Accomodation, may provide all the proof the agency needs. As we often advise clients, applying for Reasonable Accommodation is analogous to a voluntary fitness for duty evaluation in some cases.

The Essential Elements of the Charge

To prevail, the agency must establish:

1. The employee has a documented medical condition.

2. A nexus exists between the medical condition and the employee's inability to perform the essential functions of their position of record (Clemens v. Dep’t of the Army, 120 M.S.P.R. 616, ¶ 9 (2014)).

3. The medical condition is not expected to improve in the foreseeable future (Brown v. Dep’t of the Interior, 121 M.S.P.R. 205, ¶ 18 (2014)).

   
   

The Non-Disciplinary Nature of the Action

Unlike removals for misconduct, the traditional Douglas factors used to mitigate penalties do not apply to medical inability cases (Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981)). In other words, the agency does not need to apply the Douglas Factors. Because the action is not based on fault, the Board does not review whether the penalty is "reasonable" in the same way it evaluates a suspension for AWOL or insubordination (Brown, 121 M.S.P.R. at 214–15). Instead, the inquiry focuses on whether the employee can or cannot perform the essential functions of the position with or without reasonable accommodation.

Proving the Defense: Qualified Individual Status

To defeat a proposed removal in this circumstance, an employee often asserts an affirmative defense of disability discrimination. Under the Rehabilitation Act of 1973, which incorporates the standards of the Americans with Disabilities Act (ADA), an agency cannot remove a "qualified individual with a disability" (29 U.S.C. § 791). However, this is constraint is not absolute because an agency is not required to retain an employee who is unable to perform the essential functions of their position. For example, the employee argues they require reasonable accommodation to perform their job, but the agency denies the reasonable accommodation after following required procedures.

An employee is "qualified" if they can perform the essential functions of the position with or without reasonable accommodation (29 C.F.R. § 1630.2(m)). The employee must provide medical documentation that:

• Identifies the specific limitations caused by the condition.

• Explains how those limitations can be mitigated through accommodation.

• Shows that they are willing and able to work if the accommodation is provided (Chalom v. Dep’t of the Navy, 86 M.S.P.R. 218, ¶ 5 (2000)).

The Agency's Obligation to Reassign

If an employee can no longer perform the essential functions of their current position, the agency has an obligation to consider reassignment to a vacant position for which the employee is qualified (29 C.F.R. § 1630.2(o)(2)(ii)). As part of the consideration, this search for a vacant position should generally encompass the local commuting area and include positions at the same grade or pay level (EEOC MD-110, ch. 6). A failure to conduct a bona fide search for a vacant position can be fatal to the agency's removal action and cause a reversal. Conversely, if the agency did it's job, and no vacant position was available, the MSPB will sustain the agency action of removal.

Analyzing Agency Evidence: Statement vs. Evidence

When responding to a notice of proposed removal, federal employees should utilize a "Statement vs. Evidence" analysis to highlight potential discrepancies in the agency's file.

Agency Factual Claim (Statement)	Rebuttal / Evidence Required	Legal Authority
Employee is "totally disabled" and cannot work.	Medical documentation showing ability to perform essential functions with specific accommodations.	29 C.F.R. § 1630.2(m)
No vacant positions exist for reassignment.	Discovery requests for the agency's "vacant funded position" list during the relevant period.	Brown v. Dep’t of the Interior, 121 M.S.P.R. 205
The medical condition has no foreseeable end.	Physician's statement providing a prognosis or a date for re-evaluation.	Doe v. Dep’t of the Treasury, 117 M.S.P.R. 579

Disability Retirement as a Factor

If an agency initiates a removal based on medical inability, and the employee has at least 18 months of service (under FERS), the agency must notify the employee of their right to apply for disability retirement (5 C.F.R. § 844.202(b)). In cases involving mental impairment where the employee is unable to make their own decisions, the agency may even be required to file the application on the employee's behalf (5 C.F.R. § 844.202(a)). This situation is very rare and usually requires provable incapacitation of the affected employee. A removal for medical inability creates a presumption of entitlement to disability retirement under the Bruner presumption (Bruner v. Office of Pers. Mgmt., 996 F.2d 290, 294 (Fed. Cir. 1993)).

Conclusion

Removal for medical inability is a complex administrative process that requires a precision-based legal defense. Federal employees must force the agency to prove that every essential function of the position is unreachable and that no reasonable accommodation or reassignment is possible. However, if the employee requested reasonable accommodation and that request was ultimately denied, and the agency can prove it followed required processes, the employee will have an uphill battle. This is why agencies often have legal counsel review all reasonable accommodation denials as part of internal processes.

How InformedFED Can Help

Our Expertise, Your Advantage

Our expertise lies in providing comprehensive consultative and transactional administrative litigation services. We meticulously analyze and prepare your complaint, appeal, relevant documents, evidence files, and strategies to ensure that you can effectively safeguard your career, your union members, and pursue damages when appropriate and do so cost-effectively.

Our services include support for, but are not limited to:

• Discipline and Adverse Actions: Developing compelling written and oral responses to proposed removals, suspensions, and performance-based actions. These written responses will serve as the foundation for any appeal or complaint submitted to the Merit Systems Protection Board (MSPB), Equal Employment Opportunity Commission (EEOC), Agency grievance procedure, or arbitration.

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