Q&A Session: Disability Retirement


Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.


If a disabled worker, hired under Schedule A (5 C.F.R. 213.3102(u)) authority, successfully completes the extended probationary period, does that time get credited toward retirement? Are there any pending cases or amendments to this regulation? Why do other federal employees get to count their time toward retirement?


To my knowledge, there are no cases or pending amendments related to Schedule A, 5 C.F.R. 213.3102(u).

With regard to the 2-year probationary period, all Excepted Service employees serve a 2-year probationary period unless they are preference eligible. Further, it appears that an individual’s work experience, while on temporary appointment, counts toward the 2-year time period that is required for non-competitive conversion to career-conditional employment if that individual is later converted to a non-temporary 5 C.F.R.  appointment. OPM is in the process of proposing significant reform to the overall federal hiring process and may further address this issue.

With respect to the retirement eligibility, OPM has specifically excluded all employees who have a temporary appointment pending final determination of eligibility for permanent appointment. OPM’s authority to exclude this category of employees is specifically allowed by the retirement statute. It does seem to encompass the type of temporary appointment governed by 5 C.F.R. 213.3102(u). OPM’s exclusion is not limited to, nor does it directly apply to, disabled employees. Rather, the exclusion is for temporary employees awaiting a permanent appointment.


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About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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