Indefinite Suspensions: When Medical Conditions Create Concerns

As we discussed a few weeks ago, an indefinite suspension occurs when an agency puts an employee in a temporary status without duties and without pay for an undetermined period of time. Under the law, an agency may indefinitely suspend an employee for three reasons:

1. The agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed;

2. The agency has legitimate concerns an employee’s medical condition makes his continued presence in the workplace dangerous or inappropriate; and

3. The agency has suspended the employee’s access to classified information and the employee is required to have access in order to do his job.

Sanchez v. DOE, 117 M.S.P.R. 155, ¶ 10 (2011).

The previous article focused on indefinite suspensions when an agency had reason to believe the employee had engaged in criminal activity that could result in imprisonment. Today, we’ll focus on the second reason to indefinitely suspend an employee — the employee has a physical or psychological medical condition that makes his presence in the workplace dangerous to himself or others.

Let’s tackle some common questions on this topic.

What proof does an agency need to justify an indefinite suspension over a medical condition?

The four elements the Board looks for when it reviews indefinite suspensions are:

(1) The agency imposed the indefinite suspension for an authorized reason;

(2) The suspension will have an ascertainable end (an event that will end the suspension);

(3) The indefinite suspension has a nexus to the efficiency of the service; and

(4) The indefinite suspension is reasonable under the circumstances.

Hernandez v. Navy, 120 MSPR 14, ¶ 6 (2013).

What types of medical conditions could be “authorized” reasons?

A physical or psychological medical condition that presents a danger in the workplace (either to the employee or to others) will generally rise to the level of justifying an indefinite suspension. Consider the following examples from case law.

Physical. The employee, a first technician, had a host of physical medical challenges. He had recently been hospitalized for back pain and sciatica, and as a result was “unable to do overhead work, bend, stoop, lift objects over 30 to 40 pounds, do repeated lifting or carrying of objects weighing over 20 pounds, stand, or walk for more than half-an-hour without resting.” Pittman v. MSPB, 832 F.2d 598, 599. (Fed. Cir. 1987). Because he could not perform his job safely, an indefinite suspension was appropriate. The agency attempted to find a temporary reassignment but found the employee’s medical restrictions prevented him from performing in any of those positions as well. Id.

Psychological. An employee’s behavior, included aiming “a realistic-looking toy pistol at fellow employees to practice his aim;” practicing martial arts on vending machines; hacking “at a cardboard carton with a scissors while saying ‘even this is too good for her’” (referring to a fellow employee); and discussing his role in a potential “incipient revolution (of which he would be a part) with such conviction and in such detail that his fellow employees became nervous in [his] presence.” Thomas v. GSA, 756 F.2d 86, 87 (Fed. Cir. 1985). A psychiatrist deemed the employee to be “highly paranoid” and likely to engage in continued inappropriate, disruptive, and threatening behavior in the workplace, so an indefinite suspension was appropriate in this circumstance. Id.

What can trigger the end of the indefinite suspension for medical reasons?

There are typically two options:

1. Medical clearance to return to work. Once the agency receives sufficient medical documentation that shows the employee can safely return to the workplace without presenting a danger to himself or others, the agency must end the indefinite suspension and immediately return the employee to a paid duty status. See Mercer v. HHS, 772 F.2d 856 (Fed. Cir. 1985). If the employee does not provide medical documentation, or the medical documentation is not sufficient – for example, it is not specific or it does not contain appropriate details related to the employee’s ability to safely perform his work tasks – the agency is not obligated to return the employee to duty. See Barnes v. USPS, 49 M.S.P.R. 21 (1991).

2. Disability retirement. An OPM determination that the employee qualifies for disability retirement triggers the end of the indefinite suspension. 5 C.F.R. § 831.1206.

We’re talking about this topic in more detail this week during Absence, Leave Abuse & Medical Issues Week. But if you missed your chance to sign up, no worries – we’ll be running the same class, along with any relevant updates, September 23-27.

The final article in the indefinite suspension series will consider the third scenario in which an agency may indefinitely suspend an employee — the suspension of a security clearance pending a potential revocation. Hopkins@FELTG.com