The Federal Employees Compensation Act (FECA) provides workers compensation benefits to federal employees who sustain job-related injuries or illnesses. The law also guarantees employees certain job rights upon recovery. Upon their return to work, employees will be treated as though they had never left for purposes of rights and benefits based upon length of service.
The law assigns a dual responsibility to the Department of Labor’s Office of Workers’ Compensation Programs (OWCP) and to the Office of Personnel Management (OPM). OPM administers the restoration rights provision of the law. OWCP administers all other aspects of the law.
FECA provides compensation benefits to civilian employees of the United States for disability due to personal injury sustained while in the performance of duty or to employment-related disease. FECA also provides for the payment of benefits to dependents if the injury or disease causes the employee’s death. Benefits cannot be paid if the injury or death is caused by the willful misconduct of the employee or by the employee’s intention to bring about his or her injury or death or that of another, or if intoxication (by alcohol or drugs) is the proximate cause of the injury or death.
Note: The OWCP has determined that if an employee engaged in high-risk employment files a claim, and the employer supports the claim, it will accept that the exposure to the novel coronavirus which causes covid-19, was proximately caused by the nature of the employment. High-risk employment for that purpose is defined as the job requiring “in-person and close proximity interactions with the public on a frequent basis”—such as members of law enforcement, first responders, and front-line medical and public health personnel. Employees not engaged in such employment must to submit a factual statement and any evidence regarding their exposure. See www.dol.gov/owcp/dfec/InfoFECACoverageCoronavirus.htm.
An employee who sustains a job-related injury must be allowed to seek treatment from the physician of his or her choice without agency interference. The agency can require the employee to undergo a medical examination by its own doctors for the purpose of determining employability. An agency-required examination has no effect on the payment of compensation benefits by OWCP.
An employee who is unable to perform the full duties of his or her position may be placed on leave without pay (LWOP) or separated at any time. This is a non-disciplinary action and has no effect on the employee’s restoration rights upon recovery. However, an agency must tell an employee who is being separated or placed on LWOP how benefits will be affected and what the employee’s restoration rights are. The obligation to reemploy rests with the former agency; other agencies have no obligation to reemploy a recovered worker.
The employee has an obligation to cooperate with the agency, to keep the agency informed of his or her medical status, and to seek restoration as soon as the medical condition permits.
An employee is entitled to medical, surgical and hospital services and supplies needed for treatment of an injury as well as transportation for obtaining care. The injured employee has the initial choice of physician and may select any qualified local physician or hospital to provide necessary treatment or may use agency medical facilities if available. Except for referral by the attending physician, any change in the treating physician after the initial choice must be authorized by OWCP. Otherwise, OWCP will not be liable for the expenses of treatment.
The term “physician” includes surgeons, osteopathic practitioners, podiatrists, dentists, clinical psychologists, optometrists and chiropractors within the scope of their practice as defined by state law. Payment for chiropractic services is limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist. If the physician selected has been excluded from participating in the compensation program the OWCP district office will advise the employee of the exclusion and the need to select another physician.
Workers Comp for Temporary Total Disability
An employee who sustains a disabling, job-related traumatic injury may request continuation of regular pay for the period of disability not to exceed 45 calendar days or sick or annual leave. If disability continues beyond 45 days or the employee is not entitled to continuation of pay, the employee may use sick or annual leave or enter a leave without pay status and claim compensation from OWCP.
When disability results from an occupational disease, the employing agency is not authorized to continue the employee’s pay. The employee may use sick or annual leave or enter a leave without pay status and claim compensation.
Compensation for loss of wages may not be paid until after a three-day waiting period, except when permanent effects result from the injury or where the disability causing wage loss exceeds 14 calendar days. Compensation is generally paid at the rate of 2/3 of the salary if the employee has no dependents and 3/4 of the salary if one or more dependents are claimed.
The term “dependent” includes a husband, wife, unmarried child under 18 years of age, and a wholly dependent parent. An unmarried child may qualify as a dependent after reaching the age of 18 if incapable of self-support by reason of mental or physical disability, or as long as the child continues to be a full-time student at an accredited institution, until he or she reaches the age of 23 or has completed four years of education beyond the high school level.
Workers compensation for permanent effects of injury
FECA provides a schedule of benefits for permanent impairment of certain members, functions and organs of the body such as the eye, arm, or kidney and for serious disfigurement of the head, face or neck. For example, an award of 160 weeks of compensation is payable for total loss of vision in one eye.
In addition, compensation for loss of earning capacity may be paid if the employee is unable to resume regular work because of injury-related disability. This compensation is paid on the basis of the difference between the employee’s capacity to earn wages after an injury and the wages of the job he or she held when injured.
OWCP may arrange for vocational rehabilitation and provide a maintenance allowance not to exceed $200 per month. A disabled employee participating in an OWCP-approved training or vocational rehabilitation program is paid at the compensation rate for total disability.
If the employee’s condition requires a constant attendant, an additional amount not to exceed $1500 per month may be allowed.
If no child is eligible for benefits, the widow or widower’s compensation is 50 percent of the employee’s pay at the time of death, if death was due to the employment-related injury or disease. If a child or children are eligible for benefits, the widow or widower is entitled to 45 percent of the pay and each child is entitled to 15 percent. If children are the sole survivors, 40 percent is paid for the first child and 15 percent for each additional child, to be shared equally. Other persons such as dependent parents, brothers, sisters, grandparents, and grandchildren may also be entitled to benefits. The total compensation may not exceed 75 percent of the employee’s pay or the pay of the highest step for GS-15 of the general schedule, except when such excess is created by authorized cost-of-living increases.
Compensation to an employee’s surviving spouse terminates upon his or her death or remarriage. A widow or widower’s benefits continue, however, if the remarriage takes place after the age of 55. Awards to children, brothers, sisters and grandchildren terminate at the age of 18, unless the dependent is incapable of self-support, or continues to be a full-time student at an accredited institution, until he or she reaches the age of 23, or has completed four years of education beyond the high school level.
Burial expenses not to exceed $800 are payable. Transportation of the body to the employee’s former residence in the United States is provided where death occurs away from the employee’s home station. In addition to any burial expenses or transportation costs, a $200 allowance is paid for the administrative costs of terminating an employee’s status with the federal government.
Job restoration rights following injury or illness
Virtually all federal employees (including employees in the legislative and judicial branches, as well as rehired annuitants), except those serving under time-limited appointment, have restoration rights upon full or partial recovery from a job-related injury or illness. To be eligible for restoration, the employee must have been receiving benefits from OWCP (or have been eligible for OWCP benefits).
Note: Receipt of a “schedule award” which OWCP pays to an injured worker for permanent impairment of a specified member, function, or organ of the body (such as an arm, foot, lung, or loss of vision or hearing) does not necessarily mean the individual has recovered for purposes of restoration rights.
It only means that part of the body has reached maximum medical improvement. Restoration rights for full recovery are triggered when compensation is terminated on the basis of medical evidence that the employee no longer has residual limitations from the injury and can return to the former job without limitations.
The restoration rights of employees who sustain compensable injuries fall into four separate categories depending on the length and extent of recovery. Other factors affecting restoration rights are the timeliness of the application for restoration, the employee’s performance and conduct prior to the injury, and the availability of positions. Full recovery is determined by the cut-off of compensation on the basis that the employee is medically able to resume regular employment.
For purposes of restoration rights, a position with the same seniority, status, and pay means a position equivalent to the former one in terms of pay, grade, type of appointment, tenure, work schedule, and, where applicable, seniority. Standing in the organization, such as first or second supervisory level, is not a factor.
The four categories are:
- Fully recovered within one year. An employee who fully recovers within one year from the date compensation began has mandatory restoration rights to the position he or she left, or to an equivalent position. An employee’s basic entitlement is to a position in the former commuting area. If a suitable vacancy does not exist, the restoration right is agencywide. The employee must apply for restoration immediately and must be restored immediately and unconditionally by his or her former agency.
- Fully recovered after one year. If full recovery takes longer than one year from the date compensation begins, the individual is entitled to priority consideration for the former position or an equivalent one, provided he or she applies for restoration within 30 days of the date compensation ceases. Priority consideration means the agency enters the individual on its reemployment priority list. If the agency cannot place the individual in the former commuting area, he or she is entitled to priority consideration for an equivalent position elsewhere in the agency.
- Physically disqualified. An individual who is medically unable to return to his or her former occupation, but who is able to do other work, is considered to be physically disqualified. He or she is entitled, within one year of the date compensation begins, to be placed in a position that most closely approximates the seniority, status, and pay to which otherwise entitled, according to the circumstances in each case. This restoration right, too, is agencywide. After one year, the individual is entitled to the same restoration rights as individuals who partially recover.
- Partially recovered. An individual who has not yet fully recovered, but who is able to work in some capacity, is entitled to be considered for employment in the former commuting area. The agency must make every effort to place the employee but there is no absolute right to restoration. If the individual is restored at a lower grade or pay level, OWCP will make up the difference in pay, or the agency may elect to pay the employee at the former rate. If the employee later fully recovers, he or she is then entitled to the restoration rights of a fully recovered employee, according to the timing of the recovery.
The difference between a physically disqualified employee and one who is partially recovered is that the partially recovered employee is expected to fully recover eventually. By contrast, the physically disqualified employee typically has a permanent medical condition, such as the loss of an arm, which is disqualifying and makes it unlikely that he or she will ever be able to return to the former position.
A partially recovered employee has an obligation to seek employment within his or her capabilities. If a partially recovered employee refuses to accept a suitable job offer, OWCP may terminate compensation. OWCP determines whether an agency job offer is suitable according to the individual’s medical restrictions, education, and vocational background.
If an employee was separated because of a compensable injury, the agency cannot refuse to restore the individual because of alleged poor performance prior to the injury. In other words, the agency may not use the injury as a basis to circumvent performance-based or adverse action procedures that would otherwise apply. However, an allegation of an on-the-job injury by an employee does not stop an agency from taking action against the employee for performance or conduct. If an employee is removed for cause (performance or conduct) he or she has no restoration rights.
Disability Retirement Eligibility
Disability retirement and injury compensation are governed by two separate laws and are administered by two different agencies—OPM and OWCP. While disability annuities are payable whether or not your disease or injury was incurred on the job, workers’ comp is not. To receive workers’ comp benefits, your employment-related disease or injury must have been sustained in the performance of your job. Thus, entitlement to one does not automatically establish entitlement to the other.
If you apply for workers’ comp, you should also apply for disability retirement benefits. A FERS employee must also file for Social Security disability benefits. If benefits are approved under both workers’ comp and the disability retirement program, you’ll have to make a choice between the two. That’s because you can’t receive both benefits at the same time. This same rule applies if you are also found eligible for a Social Security benefit. In most cases employees elect the benefits available under workers’ comp because they are usually higher.
If OPM approves your case before OWCP does, it will begin making annuity payments to you. Then, if OWCP subsequently awards you benefits and you elect to receive them instead, the annuity already paid out to you must be reimbursed to OPM. In most cases, OWCP handles this by withholding the required amount from your initial payment. That payment is retroactive to the date when you went off the employment rolls.
While on workers’ comp, civil service disability annuity payments are suspended. However, if your compensation benefits end for any reason, including personal choice, OPM will reinstate your annuity as long as you haven’t recovered from the disability or been restored to earning capacity.
Time you spend on workers’ comp will not be counted in computing a new disability annuity or a regular annuity based on age and service. Instead, your annuity will be computed based on your service and “high-3” average salary as of the date you went on the annuity roll. However, it will be increased by any applicable cost-of-living-adjustments that were made during that period.
A person who chooses disability retirement instead of injury compensation has restoration rights, provided he or she applies for restoration as soon as the specific job-related injury has been overcome.
Not all job-related injury or disability cases require that you separate from the service. Those of shorter duration may be handled through the receipt of workers’ comp while you are on leave without pay (LWOP). In that case, all the time spent on LWOP is considered creditable at retirement for determining your length of service and your “high-3” average salary. Unlike regular LWOP, the time you spend on workers’ comp is not subject to the six month per year limitation on creditable service.
Appeal rights related to injury or illness
Executive branch employees who are entitled to restoration or priority consideration because of a compensable injury may appeal to the Merit Systems Protection Board as follows:
- An employee who fully recovers within one year or who is physically disqualified may appeal the agency’s failure to restore or improper restoration.
- An employee who takes longer than one year to fully recover may appeal the agency’s failure to place the employee on its reemployment priority list; the agency’s failure to reemploy the individual from the priority list by showing that restoration was denied because of the employment of another person who otherwise could not properly have been appointed; or the agency’s failure to place the employee in an equivalent position with credit for all rights and benefits.
- A partially recovered employee may appeal by showing that the agency’s failure to reemploy is arbitrary and capricious. If reemployed, the employee may appeal the agency’s failure to credit time spent on compensation for all benefits based upon length of service.
Appeals generally must be filed within 30 calendar days of the action being appealed.