A hearing officer found that the agency failed to conduct the required full search of the local commuting area for a suitable position. Image: Burdun Iliya/Shutterstock.com
By: FEDweek StaffTwo MSPB decisions have refined the obligations that agencies have under injury compensation law to reinstate employees after they have recovered.
One case, 23 MSPB 6, involved an employee who requested a return to work following recovery from an injury, although with a medical determination for some continued restrictions. A hearing officer found that the agency failed to conduct the required full search of the local commuting area for a suitable position, and that a second search was based on restrictions that differed from the medical determination.
The merit board held that the hearing officer erred by ordering back pay to the employee based on a conclusion that there were available assignments of at least two hours per day that met the restrictions during the period at issue. The board said that instead, the agency must “conduct an appropriate search of the local commuting area retroactive to the date of the appellant’s request for restoration and to consider him for any suitable vacancies.” The employee may be eligible for back pay if such a position is found, it added.
The other case, 23 MSPB 7, involved a challenge to an employee’s removal on charges of physical inability to perform the job and resulting excessive absences following an injury. While that process was under way, a hearing officer determined that the employee had fully recovered and ordered the agency to reinstate him retroactive to the date of removal.
The agency appealed that decision to the merit board, which upheld the ruling. “When an appellant presents unambiguous evidence of complete recovery from the medical condition that resulted in his removal before the administrative judge has issued an initial decision in his removal appeal, the removal action does not promote the efficiency of the service” and therefore should be reversed, it said.
A dissenting member, though, said that whether to return the employee to work in that situation should be weighed in each case and that in this case “the agency provided a clear, reasonable explanation as to why it could no longer support the appellant’s absence from duty, which had already continued for more than a year at the time of his removal.”
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