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By: FEDweek StaffOverturning its prior precedent, the MSPB has raised it standards for what an agency has to prove when seeking to remove an employee on grounds of inability to perform the job’s duties for medical reasons.
Case No. 22 MSPB 36 centered on a section of law generally barring the removal of employees whose positions are subject to medical standards based solely on their medical history, said a summary from the merit board. However, it said, there is a limited exception if the condition itself is disqualifying, recurrence is based on reasonable medical judgment, and the position’s duties are such that a recurrence would pose a significant risk of substantial harm to the employee or others that cannot be eliminated or reduced by reasonable efforts to mitigate that risk.
“The Board has previously applied this regulation to all medical inability cases involving positions with medical standards, rather than just those in which the removal was based solely on the employee’s medical history. That precedent was mistaken,” it said.
“For cases involving a current medical condition, the agency must prove either a nexus between the employee’s medical condition and observed deficiencies in his performance or conduct, or a high probability, given the nature of the work involved, that his condition may result in injury to himself or others,” it said.
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