Update: EEO Class Action For Postal Employees Placed Under National Reassessment Process
A class action complaint for injured on duty postal employees was certified by an EEOC Administrative Judge (AJ) on May 30,2008.
In the case of (Read article from February 17, 2009) Sandra McConnell, et al. v. United States Postal Service an AJ decision certified the following class:
All permanent rehabilitation employees and limited duty employees at the U.S. Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006 to present, allegedly in violation of the Rehabilitation Act of 1973. The AJ certification decision recited evidence that the goal of NRP was to assign work to
employees who had an approved compensable injury as determined by the Department of Labor.
According to the decision, Phase 1 of NRP consisted largely of reviewing the files and medical records of all these employees; where needed requesting updated medical documentation from the employee; and verifying that current work actually being performed matched the current job offer. According to the decision, Phase 2 consisted largely of canvassing facilities to identify work necessary for operations and functions, attempting to match the employee with the necessary work, and if none is found, notifying the employee that no work was available.
Class members argued one or more of the following complaints:
1. NRP is a systemic attempt to abolish reasonable accommodations agency wide.
2. The agency’s alleged facially non-discriminatory policy is being applied in a discriminatory manner.
3. The process constitutes denial(s) of reasonable accommodation.
4. The process constitutes discrimination based on disability (physical/mental).
5. The process constitutes unlawful harassment and hostile work environment based on disability (physical/mental).
6. The agency unlawfully modified or terminated each person’s approved disability accommodations without cause.
7. The agency made its reassignment decisions improperly by, inter alia, failing to engage in the interactive process.
8. The agency applied the program discriminatorily both with regard to each individual and how the process was applied.
9. The agency’s actions are retaliatory for the individual’s protected conduct, in reporting injuries, filing worker’s compensation, and/or prior EEO activity.
10. The agency’s conduct violated its procedures and OWCP’s regulations and blatant failure to follow the agency’s own regulations is presumed to be motivated by retaliation and/or discrimination.
The Postal Service filed an appeal from the certification decision.
Recently EEOC agreed with the AJ’s determination that the class should be defined as all permanent rehabilitation employees and limited duty employees at the agency who have been subjected to the NRP since 2006. Therefore, the EEOC reversed the Postal Service’s order rejecting the class and ordered them to notify potential class members.
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Postal Mail Handlers Union Signs Settlement On National Reassessment Program
The National Office of the NPMHU recently signed a settlement with USPS management concerning the National Reassessment Program (NRP), which is being used by the Postal Service to re-evaluate all limited duty and rehabilitation positions held by mail handlers and other postal employees who have been injured on the job.
Throughout the negotiations, the NPMHU has held the position that the Postal Service’s use of the term “necessary work” in the NRP unduly and unreasonably restricts the types of duties and assignments that must be made available to mail handlers and other employees injured on the job. We are pleased to report that the settlement reached by the National parties deals directly with this issue. In particular, the settlement has three major components:
First, the settlement addresses the NPMHU’s contention that the Postal Service has been using the NRP to implement a new “necessary work” standard for the creation and continuation of limited duty and rehabilitation assignments. The parties have agreed that “[t]he NRP has not redefined or changed the Postal Service’s obligation to provide limited duty or rehabilitation assignments for injured employees.” The parties also have agreed that ELM Section 546 “has not
been amended and remains applicable to all pending grievances.” It is important
to note that ELM Section 546.142 refers repeatedly to “adequate work” and “adequate work available” as the governing standard.
Second, the settlement deals with the Union’s contention that the Postal Service was using the NRP to develop new criteria for assigning limited duty.Again, the parties agreed that “[t]he Postal Service has not developed new criteria for assigning limited duty,” and that “[i]njured employees will continue to be assigned limited duty, in accordance with the requirements of ELM 546 and 5 C.F.R, Part 353.”
Third, the settlement specifically addresses the potential impact of the NRP on employees assigned light duty under Article 13 of the National Agreement. On this issue, the parties agreed that “[e]mployees on existing non-workers’ compensation light duty assignments made pursuant to Article 13 . . . will not normally be displaced solely to make new limited duty or rehabilitation assignments unless required by law or regulation.”
The parties further agreed that all grievances concerning the NRP, which have been held pending the outcome of this National-level dispute, will be processed through the appropriate grievance and arbitration procedure. If you have a question about NRP implementation, you should contact your Local Union representatives.