Inability to Perform (as a result of a medical condition)

The federal agency must show that either:

1. The employee has a medical condition
2. There are observed deficiencies in the employee’s performance or conduct; and
3. There is a nexus between the medical condition and the observed deficiencies

OR

1. The employee has a medical condition
2. The disabling condition itself is disqualifying
3. Its recurrence cannot be ruled out; and
4. The duties of the position are such that a recurrence would pose a reasonable probability of substantial harm.

The MSPB describes the specification to be that, “the medical evidence shows that because of a medical condition, [the federal employee] has a deficiency in conduct or performance.” The MSPB includes both physical and mental inability to perform when a federal agency issues this charge. In determining whether the federal agency’s burden has been met, the MSPB will look at whether a reasonable accommodation exists that would enable the federal employee to safely and efficiently perform those core job duties.

It must be noted however, that the MSPB has determined that if a federal employee has recovered by the time of the MSPB hearing, removing the federal employee will not be considered to promote the efficiency of the service. The MSPB also states that a federal agency should not rely on medical conditions that can be cured. The MSPB also stresses that medical evidence is critical. The MSPB will look closely at the medical documentation presented to determine whether the federal agency has in fact proven the federal employee’s inability to perform.

The federal employee attorneys at Melville Johnson, P.C. are highly experienced in MSPB matters such as these, and are willing and able to assist you in your federal employment legal matters. Call or message us today to discuss your situation and learn how we can assist you.