Competitive service federal employees who have fully recovered from workplace injuries are entitled to several possible avenues to restoration to federal employment, including the Reemployment Priority List (RPL). See 5 U.S.C. § 8151(b). Each of these avenues has its own mechanics, and so it is important for employees who have been injured in the workplace, and were recipients of benefits from the Office of Workers Compensation Programs as a result, to understand their rights under each program.
The RPL is also available to certain employees who have been affected by a reduction in force (RIF), as previously analyzed in this blog, and to employees who are returning from uniformed service, although the focus of this blog entry will be those recovering from compensable workplace injuries. Also note that different rules apply to excepted service employees and to competitive service employees who are only partially recovered from their workplace injuries, as also previously discussed in this blog.
OWCP regulations provide that, “[b]enefits are available only while the effects of a work-related condition continue. Compensation for wage loss due to disability is available only for any periods during which an employee’s work-related medical condition prevents him or her from earning the wages earned before the work-related injury.” 20 C.F.R. § 10.500(a)
For the purposes of this blog, a fully recovered, compensably injured employee is one who has been notified by OWCP that their compensation benefits will cease within 30 days, or whose benefits have ceased because they are deemed fully recovered from the compensable injury. 5 C.F.R. § 353.101(a). The timing of full recovery defines the nature of their reemployment rights.
Fully Recovered within One-Year
Competitive service employees who fully recover from their compensable injury within one year of the date they were first deemed eligible for compensation are entitled to be restored to their position of record, assuming it is open and unencumbered, and if it is not, to an equivalent position within the commuting area. 5 C.F.R. §§ 353.301(a), 353.303(a). The regulations make clear that the agency is obligated to restore the recovered employee, and the employee is obligated to return to work immediately, upon the cessation of compensation. Id. While it might be expected that such cases would be pretty straightforward, there are multiple areas for dispute. In Stenmetz v. U.S. Postal Service, 106 M.S.P.R. 277 (2007), the Board set the jurisdiction standard for such cases:
The Board has jurisdiction over such an appeal if the appellant makes non-frivolous allegations that: (1) He is an employee of an executive branch agency; (2) he suffered a compensable injury; (3) he fully recovered from the compensable injury within 1 year from the date his eligibility for compensation began; (4) the agency failed to restore him or improperly restored him; and (5) if he was separated from his position prior to the alleged failure to restore or improper restoration, his separation was from a position without time limitation and substantially related to the compensable injury. See, e.g., Frye v. U.S. Postal Service, 102 M.S.P.R. 695, ¶ 9 (2006); Burgess v. Department of the Interior, 95 M.S.P.R. 134, ¶ 8 (2003); Sullivan v. Department of Transportation, 59 M.S.P.R. 18, 19 (1993).
Please note that OWCP and OPM use different language to signal an injured employee has no further need for financial compensation because she is recovered. OWCP uses the terminology of having been restored to earning capacity, while OPM’s regulations describe the employee as “fully-recovered.” Thus, in such cases, an issue is whether the cessation of benefits was due to recovery from the compensable injury or for some other reason. See Nixon v. Department of Treasury, 104 M.SP.R. 189 (2007).
Full Recovery after One Year - Employee Requirements for RPL
To be eligible for RPL placement after fully recovering from a compensable injury, the employee must meet these basic requirements under 5 C.F.R. § 330.203(b):
- Must be serving in, or have separated from, an appointment in the competitive service in tenure group I or II;
- Must have either accepted a position at lower grade or pay in lieu of separation, or have been separated due to compensable workplace injury or disability;
- Must have fully recovered more than one year after compensation began; and
- Must have received notice from the Office of Workers’ Compensation Programs that injury compensation benefits have ceased or will cease.
Cessation of benefits means “cessation of periodic support payments the injured employee received while temporarily totally or partially disabled, not the termination of payment of scheduled compensation or medical benefits.” See Nixon v. Dept. of the Treasury, 104 M.S.P.R. 189 (2006) (citing Carter v. U.S. Postal Service, 27 M.S.P.R. 252, 255 (1985)). The reason for the termination of OWCP benefits must be due to the employee’s “full recovery” (defined as “the employee is able to perform all the duties of the position he or she left or an equivalent one.” See 5 C.F.R. §§ 353.102, 353.301(b).
An important feature in this regulatory scheme is that an employee must affirmatively register for the RPL program–they are not automatically placed on the RPL. Instead, the employee must send a written application to their employing agency indicating a desire to be placed on the RPL. This application must be submitted to the agency, in workers’ compensation cases, within 30 days of when the date compensation benefits cease or that the Department of Labor denies compensation benefits. See 5 C.F.R. § 330.206. If an employee successfully registers for the RPL, they remain on the RPL for 2 years from their date of registration. See 5 C.F.R. § 330.208. The employee must also have been separated because of the compensable injury (and not separated for other reasons, such as removal for cause due to misconduct).
In general, an employee will remain on the RPL until they are placed in an appropriate comparable position or reach the end of their eligibility. However, a fully recovered injured employee can be removed from the RPL for several reasons including: failure to respond to an agency inquiry about a job from the RPL, recission, cancellation or modification of the OWCP notice and reinstating their injury compensation benefits, by accepting a comparable, non-time limited position at any agency, or at their own request. See 5 C.F.R. § 330.209.
Agency Responsibilities for RPL
The agency has specific requirements they must complete in maintaining the RPL:
- It must maintain an RPL for each local commuting area where it has RPL eligible employees and establish policies that state how the agency will assist RPL eligible employees;
- It must give each RPL eligible employee information about the RPL when it sends a RIF separation notice; and
- It must register an RPL eligible employee on the correct RPL within 10 days of receiving the employee’s application.
In general, the employee can only register for the RPL for the local commuting area from which they are separated, based on the duty station of their position of record when they were injured. A “local commuting area” is the geographic area usually considered a single area for employment purposes and includes any population center (or two or more neighboring ones) and the surrounding localities where people live and can reasonably be expected to travel back and forth daily to their jobs. However, the agency can designate a different local commuting area if all positions in the employee’s area have been abolished, and special rules apply to certain other situations (for example, where the employee was stationed overseas). Within that local commuting area, the agency is required to give priority to individuals on the RPL list for all selections, irrespective of which agency component the position is associated with. See 5 C.F.R. §§ 330.101(a), 330.201(c).
Employee Rights for RPL
Generally, an agency cannot place an external candidate into a competitive service position over an employee who is qualified and on the RPL, unless the RPL employee has declined the position first. See 5 C.F.R. § 330.210. However, a number of specific exceptions to this rule apply. See, e.g., 5 C.F.R. § 330.211. For instance, applicants with veteran preference eligibility or other reemployment or restoration rights may have priority placement rights over the RPL employee. Further, the agency is permitted to hire an internal competitive service candidate over an RPL candidate, provided that any Career Transition Assistance Plan (CTAP) priority rights are applied first. See 5 C.F.R. §§ 330.201(a), 330.211(a); 73 Fed.Reg. 51944, 51946 (Sept. 8, 2008). Additionally, for a given position, a hiring manager may exclude from consideration a candidate who has rejected three times for the same position. See 5 C.F.R. § 332.405.
Under OPM’s RPL regulations, agencies may opt for one of several placement methods for RPL employees, some of which require RPL employees to apply for specific vacancies before they receive RPL priority rights for the given vacancy. See 5 C.F.R. § 330.213. Accordingly, it is important for RPL employees to know the specific RPL placement method that applies to them.
Violations of the RPL Regulations
Some common ways that an agency may violate the RPL regulations include situations where:
- Agency hires someone in violation of the rights of an employee on the RPL for a competitive service position;
- Agency misinforms or fails to inform the employee of their rights under the RPL;
- Agency fails to inform the employee of available vacancies, if the agency is using an application-based placement method;
- Agency improperly removes the employee from the RPL.
Right of Appeal if RPL or Restoration Rights are Violated
An employee who believes the agency violated his or her RPL rights by employing another person who otherwise could not have been appointed properly can file an appeal with the Merit Systems Protection Board (MSPB) to challenge the agency’s action. 5 C.F.R. §§ 302.501,330.214.
In addition, fully recovered employees who are denied restoration rights less than one year from their compensable injury are entitled to full restoration to their position, and may appeal the denial to the MSPB, as may employees who are denied restoration after partial recovery if the agency acted “arbitrarily and capriciously in denying restoration.” 5 C.F.R. § 353.304.
An RPL rights appeal must be filed no later than 30 days after the effective date of the agency’s appointment of another person over the RPL employee. See, e.g., Boyd v. Dept. of Justice, MSPB Docket No. SF-0330-11-0421-I-1 (July 11, 2011) (Slizeski, A.J.)(nonprecedential); 5 C.F.R. § 1201.22(b). This deadline can be extended if the employing agency had separated the employee due to compensable injury but failed to provide notice of the deadlines for requesting restoration, provided that the employee has shown due diligence in enforcing their rights. See Bolden-Pruitt v. U.S. Postal Service, MSPB Docket No. CH-0353-16-0431-I-1 (August 1, 2022).
The MSPB can order remedies such as extension of RPL eligibility and award attorney’s fees and costs. If the employee should have received a job offer if RPL priority had been properly granted, then the MSPB can also order the agency to retroactively reconstruct the prior selection and require that a position be offered to the employee with back pay. See King v. Dept. of the Navy, 98 M.S.P.R. 547 (2005) and 100 M.S.P.R. 116 (2005), aff’d, 167 Fed. Appx. 191 (Fed. Cir. 2006); Welby v. Dept. of Agriculture, 10 M.S.P.R. 17 (2006) (citing Hudson v. Dept. of the Navy, 86 M.S.P.R. 398 (2000), aff’d, 15 Fed. Appx. 812 (Fed. Cir. 2001)).
A second form of MSPB appeal right exists if the agency fails to provide an eligible employee with notice of their rights to register for RPL. See Sturdy v. Dept. of the Army, 440 F.3d 1328, 1337 (Fed. Cir. 2006) (construing 5 C.F.R. § 330.204(b)(1) and Roberto v. Dept. of the Navy, 440 F.3d 1341, 1353 (Fed.Cir. 2006)).
However, the decision of an agency that an employee is ineligible to register on an RPL or internal PPP is not within the Board’s jurisdiction, and tother reemployment rights violations may unfortunately be outside MSPB jurisdiction. See, e.g., McCorkle v. Dept. of Defense, MSPB Docket No. SF-0330-03-0255-I-1 (June 10, 2003) (Berg, A.J.)(construing 5 C.F.R. § 330.203).
Other restoration rights appeals must be filed with the MSPB within 30 days of the action being appealed. Where the action is a non-response by the Agency, where circumstances indicate that the appellant had had sufficient information to conclude that the agency had effectively denied the reinstatement rights. See, e.g., Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-24-0470-I-1 (April 18, 2025) (Henderson, A.J.).
In cases where the agency has both an RPL and an internal priority placement program (PPP), or where it has an OPM-approved PPP instead of an RPL, and where the agency has allegedly violated both programs in a nonselection, the MSPB has jurisdiction over both violations. See id. (citing Russo v. Dept. of the Navy, 85 M.S.P.R. 12, 17 (1999)); Roberto v. Dept. of the Navy, 440 F.3d 1340, 1350 (Fed.Cir. 2006).
If you are a federal employee who has recovered from a compensable injury and needs advice regarding your restoration rights, consider contacting Gilbert Employment Law to request an initial consultation.