When is a Federal Employee or Postal Worker Entitled to "Restoration Rights"?

Many federal employees and postal workers are injured on the job.  Most find it necessary to enter a period of leave without pay (LWOP) and/or accept wage loss compensation benefits from the Office of Worker's Compensation (OWCP).  While many federal employees and postal workers are injured on the job, just as many recover from a partial or total temporary disability that resulted from an on the job injury.

What happens to the federal employee or postal worker who recovers from an on-the-job injury, or a disability or disease resulting from such an injury?  Will the USPS employee or the Federal employee be entitled to get their job back?

The answer largely depends on whether or not the employee has fully recovered or partially recovered from a temporary disability.

Restoration Rights of Recovered Employees

Employees who have fully recovered from disability and can perform the duties of their prior position may have what are called “restoration rights”. That is, a federal employee has an absolute right of restoration to a former (or equivalent) position if that employee totally recovers from a temporary disability within 1 year of the injury. If the recovery takes longer than a year, the employee can get “priority consideration” in applying for a former position (or its equivalent).

The employing Federal Agency must restore a federal employee (including postal workers) who recovers within one year of the date that they began to collect wage-loss compensation for an on the job injury. The Agency will need to verify that the employee received worker’s compensation payments during the absence, and the period that the compensation was paid, so that the employee may receive any rights or benefits that accrue based on length of government service.

How to Reclaim a Prior Position

If the employee has been terminated, and wishes to reclaim his or her job, they should contact the hiring Agency first, and then if that fails, the Office of Workers Compensation (OWCP) should assist the employee in getting their old position back.

If the employee and the Office of Workers Compensation (OWCP) are unsuccessful, then the federal employee may have an appeal right to the Merit Systems Protection Board (MSPB).  Such an appeal would be considered a "restoration rights" appeal.

Until recently, "restoration rights" appeals were considered to be a losing appeal.  MSPB case law had developed in such a way that it was rare, if not impossible, for an MSPB Administrative Judge to find that a federal employee or USPS employee's restoration rights were denied.

Recent Trends in Restoration Requests

The MSPB, with 3 new Board members, issued three (3) decisions late in 2009 which may have reversed the trend of the old board and given new life to restoration rights appeals.  In each of the 3 cases, the MSPB stressed that Agencies, in deciding whether or not to restore a federal employee who was previously injured on the job, are bound by the minimum standards outlined in the Americans with Disabilities Act and the Rehabilitation Act.

In other words, Federal Agencies “make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty.” Agencies are required to treat partially recovered employees substantially the same as an  individual with a disability under the AADA/Rehab Acts.  These laws require that Federal Agencies must make reasonable accommodation of an employee's disability  through means such as modifying or adjusting the duties of the position at issue, or reassigning the employee to a vacant position whose duties the employee can perform. The only way that the Agency can escape this duty is to prove that the accommodation works an “undue hardship" on the Agency.

If you have been injured on the job at a Federal Executive Agency, and if you have partially or fully recovered from that injury, and your Agency (or the MSPB) has denied your request to restoration, it may be time to try again.