Injured First Responders and Special Retirement: OPM's Late First Responder Fair RETIRE Act Rule

Bottom line

About 220,000 federal employees are in special retirement positions, and OPM expects roughly 215 of them to need the protection it proposed on July 22 ^[1]. That small number matters a great deal to each of the 215. The rule would let a law enforcement officer, firefighter, air traffic controller or other covered first responder who is permanently hurt on duty move to a desk job and keep the 20-year retirement track ^{[1, 2]}. Comments are due September 21 ^[1].

What happened: OPM’s proposed rule for injured federal first responders

OPM published the proposal in the Federal Register as FR Doc. 2026-14751, under docket OPM-2024-0014 ^[1]. Government Executive reported it the day before publication ^[4], and the proposal amends 5 CFR parts 353, 831 and 842 ^[1].

How we got here. Covered first responders pay an extra half percent of basic pay toward retirement. In return they can retire at 50 with 20 years of service and face mandatory separation at 56 or 57 ^[3]. Under FERS, they accrue 1.7 percent of their high-3 salary for each of the first 20 years, against 1 or 1.1 percent for other employees ^[3]. Before the law changed, an officer who could no longer do the job and took a non-covered federal position lost that track. The Senate report on the bill described a smokejumper who fell 80 feet, broke his back in five places, returned to a different federal job, and lost credit for 12 years of higher contributions ^[3].

The House passed H.R. 521 by 417 to 0 on July 12, 2022 ^[3]. It was signed on December 9, 2022 as Public Law 117-225 ^[2]. The statute told OPM to issue regulations “not later than 1 year after the date of enactment,” which was December 9, 2023 ^[2]. It also made the new treatment apply only to injuries and illnesses suffered two years after enactment, on or after December 9, 2024 ^[2]. The proposal arrives about 31 months after the regulatory deadline and more than 19 months after coverage began ^{[1, 2]}.

What the proposal does ^[1]:

• Tries the covered path first. The employing agency must, “to the greatest extent possible,” place the employee in a related supervisory or administrative position that still carries special retirement. If it cannot, it must tell the employee why.
• Creates a “deemed covered position.” When no covered job is available, a non-covered job is treated as covered for retirement credit, deductions and annuity computation until the employee reaches the age and service at which mandatory separation would have applied.
• Sets four tests for the injury. The employee was in a covered position; the injury or illness happened while on duty “as a direct result” of the duties; it permanently prevents “useful and efficient service” in that position; and the employee was not yet eligible for immediate retirement or subject to mandatory separation.
• Sets four tests for the new job. It must be under CSRS or FERS, not already a covered position, and either in the same agency or in one that regularly fills related secondary positions. The move must come with no break in service of more than 3 days.
• Requires agency certification. The agency where the injury occurred certifies the condition. It may consider a Labor Department finding under FECA, but must decide permanence independently.

OPM defines “while on duty” as performing work “under the control or direction of the agency” ^[1]. It asks for comment on injuries during travel, emergency callbacks, required training, commuting exceptions and on-call response ^[1]. That list is the honest version of the definition: OPM is not yet sure where the edges are.

What it means for you: who keeps special retirement after an on-duty injury

Covered employees hurt on or after December 9, 2024. You are the group the statute already protects ^[2]. Under the proposal you would keep paying the higher deduction rate, your new agency would pay the higher agency contribution, and OPM would compute your annuity under the special provisions, including the FERS annuity supplement and the special cost-of-living rules ^[1]. A rough sense of the stakes comes from the accrual rates: 20 years at 1.7 percent is 34 percent of high-3, against 20 to 22 percent at the regular FERS rates ^[3].

Covered employees hurt before December 9, 2024. The law does not reach you, and the proposal does not change that ^{[1, 2]}.

Your pay in the new job. Deemed coverage is a retirement status only ^{[1, 2]}. OPM states that law enforcement availability pay, the special base rates for law enforcement officers at GS-3 to GS-10, wildland firefighter special rates and the Border Patrol overtime supplement would not follow you ^[1]. Administratively uncontrollable overtime may be payable in the new job, but it would not count as retirement-creditable basic pay ^[1]. If the move cuts your basic pay, OPM says pay retention under 5 U.S.C. 5363 can apply, provided its conditions are met; temporary and term employees are not eligible ^[1].

Choosing out. You may waive deemed coverage within 60 days of the agency’s written notice. The waiver is irrevocable ^[1]. Readers should note what that means in practice: a decision made in the first two months of a new job, possibly while still recovering, settles how that job counts for retirement.

Keeping it. Deemed coverage survives a transfer only to an agency that regularly fills related secondary positions, and only with no break of more than 3 days ^[1]. Time on workers’ compensation or on leave, including leave without pay, does not count as a break ^[1]. Once lost, deemed coverage cannot be restored unless a new, separate qualifying injury occurs ^[1].

If the answer is no. A denial must be in writing with notice of the right to appeal to the Merit Systems Protection Board ^[1].

The sense of Congress. The law says agencies should keep injured responders in the same agency, the same location and at comparable pay ^[2]. OPM’s position is that this section “is not part of” the retirement laws it may regulate, so it cannot write rules to enforce it ^{[1, 4]}. It instead ties the principle to existing workers’ compensation restoration rights, and says an agency that cannot place the employee “should seek OPM assistance” ^[1]. “Should” is doing a lot of work in that sentence.

CSRS employees. OPM asks whether any CSRS employee could realistically qualify, and whether the CSRS amendments should be dropped ^[1].

Contractors. The rule amends CSRS and FERS regulations ^[1]. Contract firefighters, guards and other contractor staff are not in either system and are outside it.

Questions you’re probably asking

If I was injured on duty as a federal law enforcement officer before December 2024, does the First Responder Fair RETIRE Act cover me?

No. The law reaches only illnesses and injuries incurred on or after December 9, 2024, two years after it was signed, and the proposal repeats that cutoff ^{[1, 2]}.

When is the deadline to comment on OPM’s First Responder Fair RETIRE Act rule?

September 21, 2026, through regulations.gov under docket OPM-2024-0014 ^{[1, 5]}.

Do I keep LEAP or law enforcement special pay rates in a deemed covered position?

No. Deemed coverage counts only for retirement; LEAP, the law enforcement special base rates and the Border Patrol overtime supplement do not follow the employee ^{[1, 2]}.

How long do I have to waive deemed coverage, and can I change my mind?

Under the proposal, 60 days from the agency’s written notice, and the waiver cannot be revoked ^[1].

Can I appeal if my agency says my injury does not qualify?

Yes. The proposal requires a written decision with notice of the right to appeal to the Merit Systems Protection Board, and a separate appeal right if the new agency refuses deemed coverage ^[1].

What I’m watching

• September 21, 2026: comments close on docket OPM-2024-0014 ^{[1, 5]}. Watch for union and employee group filings on the pre-rule reassignment question and on the “while on duty” definition.
• After September 21: a final rule. The proposal gives no target date, and the statutory deadline passed on December 9, 2023 ^{[1, 2]}.