OPM Finalizes Federal Performance Discipline Regulations

Nov 12, 2020

OPM Federal Performance Regulations

On September 17, 2019, the Office of Personnel Management (OPM) issued its final regulations governing probation on initial appointment to a competitive position, performance-based reduction in grade and removal actions, and adverse actions that will go into effect on November 16, 2020.

This final rule builds on to the executive order (E.O) 13839 that was issued in 2018 by President Donald Trump that was aimed to promote accountability and streamlining removal procedures consistent with merit system principles.

The Office of Personnel Management has received significant opposition to this order which is why we are here to help clarify what this order is and how this could affect the future of Federal Disability Retirement.


Key Points from Executive Order 13839

    • A probationary period will be used as the last step in the hiring process of a new employee to assess candidate’s potential to be an asset to the agency.
    • Employees are expected to keep high standards of integrity, conduct, and concern for the public interest, and understand that the Federal workforce should be used efficiently and effectively.
    • Employees should be kept based on the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
    • Removing unacceptable performers should be a straightforward process to minimize the burden on supervisors.
    • Suspension should not be a substitute for removal in circumstances in which removal would be appropriate.
    • When taking disciplinary action, agencies should have discretion to consider an employee’s disciplinary record and past work record, including all past misconduct.


Key Points from OPM’s Final Rule:

    • Agencies should not require that an employee have previously been suspended or reduced in pay or grade before a proposing official may propose removal.
    • Agencies should issue decisions on proposed removals within 15 business days and limit the written notice of adverse actions to 30 days.
    • An employee’s entire performance history should be given higher importance than how long they have been employed by the federal government.
    • Agencies must notify supervisors when an employee’s probationary period is ending three months prior to the end of a probationary period, and then again one month prior to the end of the probationary period.
    • Agencies are not required to help employees provide an improvement period longer than required by law.


What does this mean?

These new OPM regulations will make it easier for a federal agency to fire an under-performing federal employee. It is made easier because there is a shortened time period in which an employee can improve their performance before an agency recommends disciplinary actions.

There are also set mandatory procedures to discipline supervisors who retaliate against whistleblowers.


How does this OPM regulation affect Federal Disability Retirement?

Federal disability retirement benefits are available to civilian federal workers, including employees of the U.S. Postal Service, who are disabled by injury or illness and can no longer provide “useful and efficient service” in their current position. However, you must apply for this benefit before you leave your job or within one year from your separation from service.

This is where the new OPM regulations could potentially affect future Federal Disability Retirement claims. Since the process to fire a federal employee will become easier and shorter, the chances of an employee getting fired due to “inefficient performance” would be higher. This may increase the number of terminations due to the process being easier and faster. Additionally, this puts a time limit on when you can apply for Federal Disability Retirement because you must ensure that it is within one year of separation.
However, if the agency removes you due to “inefficient performance” than this result would be helpful to building your Federal Disability Retirement case.

If you are concerned about being fired due to your inability to perform ALL the required duties of your job due to an injury or illness, it may be time to apply for Federal Disability Retirement.

You DO NOT have to be separated to start this process.


Our Federal Disability Retirement Attorneys Can Help You

Harris Federal Law Firm helps injured federal employees with their representation needs when taking their claims to the Office of Personnel Management (OPM). If you are a federal employee and you feel that you may need Federal Disability Retirement assistance give us a call at 859-226-2723 for a FREE Consultation.

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