USPS Moves Processing of Employees FMLA Requests to Human Resources Center
The Human Resources Shared Services Center (HRSSC) began processing Family and Medical Leave Act (FMLA) requests for employees of 23 districts and headquarters July 11. FMLA processing for all other districts nationwide will transition to HRSSC Sept. 10. Read more
APWU Encourages Members to Use DOL Forms For FMLA Leave Requests
The APWU is encouraging members to use Department of Labor forms when requesting Family & Medical Leave, while the union pursues a dispute with the Postal Service over employees’ right to use APWU forms or other equivalent documentation.
In a Dec. 17, 2010, memo [PDF] to local, state, and national union officers, Mike Morris, director of Industrial Relations, wrote that the APWU continues to assert that use of Department of Labor (DOL) forms are optional. Under the Family & Medical Leave Act (FMLA), medical certification provided in any format must be accepted, as long as it contains all of the information required under the law, he said.
Despite the APWU’s position, Morris said, the union is encouraging employees to use the DOL Forms WH-380E [PDF] and WH-380F [PDF] until such time as a national-level grievance [PDF] on the issue is resolved. The union filed a dispute on the matter, after management notified the APWU of its intent to require employees to use the DOL forms.
In the past, the union encouraged members to use forms offered by the APWU, because the DOL forms ask physicians to provide some information that is not required by FMLA regulations.
Postal Worker Fired For Improper Use Of FMLA Gets Job Back
This is a summary from an arbitration decision regarding the Postal Service’s decision to discharge a Postal Clerk for Improper Conduct/Providing False-Inaccurate Information on PS. Form 3971 (Request For Leave). The USPS charged Postal Clerk with using FMLA to work second job. This is a summary from an arbitration decision regarding the Postal Service’s decision to discharge a Postal Clerk for Improper Conduct/Providing False-Inaccurate Information on PS. Form 3971 (Request For Leave). The arbitrator sustained the Union’s grievance and returned the grievant to work with back pay, less any compensation received during the period of removal.
The Grievant filed a Certification of a Serious Health Condition for FMLA protected leave from 2007. This document allowed the Grievant intermittent absences, between four (4) and six (6) times a month, based on a chronic health condition. Sometime in late 2008 the grievant’s supervisor was informed that Grievant had been found asleep on the job. Supervisor Mulhall investigated the incident, interviewed the Grievant, who stated that he had a second job and was extremely tired. The Postal Service contacted the Office of Inspector General (OIG) and expressed his concern about the Grievant’s possible misuse of FMLA Sick Leave. Eventually the grievant admitted he worked at Circuit City, but denied submitting requests for FMLA sick leave on the same day(s) he worked at Circuit City.
The Union argues that Management failed to establish just cause for the removal of the Grievant. The Union contended that the crux of the matter is the interpretation of ELM, Section 535.312, which states that “An employee who is in a sick leave status may not engage in any gainful employment unless prior approval has been granted by appropriate authority.” Management’s interpretation of this ELM cite is that an employee who calls in, requesting sick leave, is in that status for a twenty four (24) hour period and cannot engage in any outside employment during that time frame. However, Management’s witnesses could not establish when this twenty four (24) hour period began and ended. The Union contends that nowhere in ELM 535.312 does it state that the covered period is only for twenty four (24) hours.
The Union also disputed Management’s interpretations of this ELM cite. The Union contended that the proper interpretation of the ELM 535 is the employee cannot engage in outside employment while on sick leave, during those hours the employee is scheduled to work his postal position. The Union states that the Grievant worked at Circuit City, during the time frame in question, as a bench technician. His hours of work at Circuit City were from 9 a.m. to 2 p.m. and for the Postal Service from 3 p.m. to 11:130 p.m. The Union argued that the Grievant did not violate the cited ELM provision, since he did not work at Circuit City, during the hours when he was supposed to be working at the Post Office. The hours of the two jobs never overlapped. Management never established that the Grievant was aware of this particular rule in the ELM 535. The Union contends that the removal was punitive in nature and argues that the Grievant had no prior discipline of this nature. They contend that Management violated the progressive concept of discipline outlined in Article 16.1 of the CBA.
As noted above the arbitrator sustained the Union’s grievance, in so doing he stated:
“The Employer’s case is very problematic, since it has not been shown by Management that the Grievant’s actions in requesting his FMLA sick leave was to collect an undeserved compensation, and not based on an existing serious health condition. If his motivation was to seek a financial wind fall as alleged by Management, clearly there would have been more than the three (3) dates in question where Mr. [Grievant] called in for FMLA sick leave. The record reflects that the Grievant worked approximately eighty five (85) days at Circuit City, between the dates of September 18, 2008, and February 25, 2009, yet there are only three (3) dates in question that the Grievant called into the Post Office requesting FMLA sick leave. . . This is not the typical case where an employee calls in requesting sick leave, goes on vacation or works a second job, and upon returning to work, completes and signs a PS – Form 3971 alleging sickness. Under such a scenario, a clear falsification by the employee of Form 3971 can be shown for financial gain. The employee would be clearly hiding the fact of having taken a vacation or having worked, and could be disciplined for not being honest about an illness. . . The Grievant on the other hand, never hid the fact from Management that he was working a second job. Supervisor [] testified that sometime in late 2008, Grievant had been found asleep on the job and when she investigated the incident, Grievant informed her that he had a second job and was extremely tired. There was also evidence, subsequent to this event, that on Sunday’s the Grievant would come in dressed as if he were going to, or coming from church. When Supervisor [] questioned the Grievant about his attire, he again informed her that he was now working a different second job. The Grievant never tried to hide the fact that he had outside employment while also working for the Postal Service. Management knew as early as September 2008 of the Grievant’s outside employment, yet never bothered to caution or warn him regarding ELM, Section 513.312, which it is alleged he violated. It was as though Management, knowing the Grievant had a second job, was trying to set him up for termination. It appears from the record that when the Grievant informed Supervisor [] of his outside employment, she then informed her Manager. . . Management had at least two opportunities to forewarn the Grievant of its concerns, relevant to his outside employment and ELM, Section 513.312 requirements, but failed to do so. As such, Grievant’s outside employment was not unknown to Management and his employment is hereby imputed via constructive notice, and is not a legitimate basis for his removal from Postal employment. Moreover, the Grievant’s work hours at Circuit City were from 9 a.m. to 2 p.m. His scheduled tour of duty with the Postal Service was from 3 p.m. to 11:30 p.m. Evidence failed to establish that the Grievant was working his second job at Circuit City, when he was also scheduled for duty at the Post Office.
USPS Seeks Supplier To Conduct All Non-Work Related Medical Exams
From the Federal Business Opportunities website:
The United States Postal Service (USPS) is pursuing a National Agreement with a Supplier(s) that has or is capable of developing a comprehensive Medical Provider Organization for conducting all non-work related medical examinations for the USPS. Postal Service offices are located in each of the 50 states plus Puerto Rico. Examinations and testing may be required in or around every city in the country.
This program will support the following USPS Internal Business Partner’s (IBP’s): Health and Resource Management (Occupational Health Services), U.S. Postal Inspection Service, Office of Inspector General, and Corporate Personnel Management.
The medical examinations include but are not limited to:
Pre-employment physical examinations for law enforcement applicants (Postal Inspectors, OIG Agents, and Postal Police Officers).
- Mandated law enforcement periodic physical examinations
- Specialty examinations for Forensic Laboratory Services and Technical Services personnel and Firing Range Instructors
- Health examinations for Postal Executives
- Focused Examinations for hiring suitability
- Fitness for Duty Examinations requested by the IBPs
- Fitness for Duty Examinations requested by Health and Resource Management for OWCP cases
- Threat Assessments (Emergency Fitness for Duty)
- FMLA Second and Third Opinions
- Return to work clearance exams
- Safe Driver program examinations
- National Reassessment Program examinations
- Specialty laboratory examinations and treatments
- Any other specific IBP medical examinations required
The majority of these examinations will require board certified specialists including psychiatrists, psychologists, orthopaedic surgeons, neurosurgeons, neurologists, physical medicine specialists, occupational medicine specialists, ophthalmologists, otolaryngologists, etc. The physician administering the examination is prohibited from establishing any future medical/professional relationship once the examination has been scheduled. The sole purpose of the examining physician is to administer the examination and to record the findings.
Response Date: Aug 27, 2010 11:59 pm Eastern
FMLA Leave Expanded to More Parents And Children
The Department of Labor issued the following clarification on the expanded FMLA regulations:
Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child. An employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands “in loco parentis” to the child.
Wage and Hour Division Administrator’s Interpretation No. 2010-3
June 22, 2010
Issued by Deputy Administrator Nancy J. Leppink
SUBJECT: Clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing “in loco parentis” to a child.
The Administrator has determined that additional clarification is needed on the definition of “son or daughter” as it applies to an employee taking FMLA-protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. Based on the Wage and Hour Division’s experience in administering the FMLA, it is evident that many employees and employers are unsure of how the FMLA applies when there is no legal or biological parent-child relationship. The Administrator is issuing this interpretation to provide needed guidance on this important area of law. Read more
ADA Considerations Following Exhaustion of FMLA Protected Leave
Exhaustion of FMLA protected leave is a common problem in the Postal Service. This legal article makes several good points about ADA considerations:
The broadened scope of the ADA increases the likelihood that anyone taking FMLA leave for their own serious health condition may also have an ADA protected disability. As a result, it is important for employers to consider whether the employee is covered by the ADA (or state disability law) before separating an employee who has provided notice of his or her inability to return to work following exhaustion of the employee’s maximum FMLA leave entitlement. Oftentimes, such employee notice includes a request for additional leave and/or a doctor’s note with a return-to-work date beyond the FMLA leave expiration date. While there is no duty under the FMLA to grant additional leave, if the employee’s medical condition meets the definition of an ADA disability, there may be a duty under the ADA to consider granting additional unpaid time off from work, as some courts have held that leave is a form of reasonable accommodation.
USPS Blanket Policy To Challenge Postal Employees With Too Much FMLA Leave??
This a quite a lengthy case so I will try to summarize it with key points:
The Postal Service was found to have unlawfully discriminated against Michigan Letter Carrier Barbara Passage on the basis of disability, sex, retaliation for EEO activity in the terms and condition of her employment. Additionally,USPS managers/supervisors failed to reasonably accomodate Passage under the Rehabilitation Act. EEOC ruled that USPS failed to show it could accomodating her would cause a hardship.
The claims raised by Passage:
On June 22, 2007, her FMLA was denied;
On July 9, 2007,she was issued a letter of warning;
On July 18, 2007, she was issued a 7-Day Suspension;
On August 4, 2007, she was harassed and her 3996 was disapproved;
On August 7, 2007, she was harassed about her field and office time and her 3996 and 1571 disapproved;
On Septmeber 11, 2007, she was issued a letter of warning;
On or about November 20,2007, her attendance records was illegally changed, her FMLA hours were “exhausted and her FMLA protection terminted;
On December 11, 2007, she was given a pre-discplinary interview;
On December 26,2007, she received a letter of warning charging her with Irregular Attendance;
On or about January 16,2008, she was denied FMLA
The Postal Service’s Associate Area Medical Director retaliated against Passage for EEO activity under the Rehabiliation Act in providing instructions to the FMLA Coordinator for the purpose of denying her FMLA coverage. The Area Medical Director also provided instructions as to treatment of Passage regarding her leave request and medical certifications.
USPS manager/supervisors also retaliated against Passage for EEO activity; not providing her with assistance in delivering mail and by disciplining her for returning from route with undelivered mail when they did not do so for a male employee.
The USPS Area Medical Doctor contacted Passage’s doctor after receiving her FMLA certification in 2007. The USPS doctor told her doctor that the requested time off was too much and it could not be approved. She also inquired whether the Passage was a malinerer and honest. Passage’s doctor explained that Passage was not a malinerer but suffered from a condition that required time off. Since the Area Medical doctor told Passage’s doctor that she would not get the requested time off, he changed the medical certification to what the Area Doctor suggested.
During the hearing the FMLA Coordinator for USPS, Michigan District admitted that the “Agency policy is to challenge any certification for absences that allow an employee to take off work a great deal.” The EEOC administrative judge wrote,” This policy shows that the Agency is not complying with the Rehabilitiation Act because it is not accessing each employee’s need for absences on an individualized basis but simply challenges all requests for absences that it feels are general too many.
EEO set the remedy for this discrimination should be in part is to pay passage $50,000 in compensatory damages and separate attorney costs/fees.
This case is not settled as USPS was expected to challenge this decision.
New FMLA Rules Increase Time Off To Help Care For Veteran, Active-Duty Relatives
Postal employees will have more opportunities to take time off work to help family members who are military service members or veterans under new rules mandated by the 2010 National Defense Authorization Act.
The law, signed late last year by President Obama, allows employees to take up to 12 weeks of paid or unpaid leave per year under the Family and Medical Leave Act (FMLA) to help a family member who is on active duty or is being called up for active duty to a foreign country.
The new rules also enable employees to take up to 26 weeks of paid or unpaid leave per year under FMLA to care for family members who are veterans and need medical treatment, recuperation, or therapy for a serious injury or illness incurred in or aggravated by service in the line of duty on active duty.
Previously, employees could only take time off to help injured or ill family members who were active-duty military. To qualify, the veteran must have been a member of the military, National Guard, or Reserves during the five years preceding the treatment, recuperation or therapy.
Click here for further information about the Family and Medical Leave Act. (internal USPS link)
also see New Law Expands FMLA for Military Families