All Sections ------------------------------- News & Events Pay & Benefits Departments & Divisions Members Only

Advanced Search

Printer-Friendly Page

(This article was first published in the July/Aug 2006 issue of The American Postal Worker magazine.)

Court Reverses Ruling on FMLA-Covered Absences

Greg Bell, Director
Industrial Relations

In the September/October 2005 issue of the American Postal Worker, I wrote about a landmark U.S. Court of Appeals ruling dated July 19,2005,that invalidated USPS return-to-work requirements for Family and Medical Leave Act-covered absences.

Recently, however, the same court reversed its prior ruling that USPS return-to-work regulations may not impose a greater burden on an employee than those imposed by the FMLA and its regulations. (Rodney Harrell v. USPS; U.S. Court of Appeals for the Seventh Circuit, No.03-4204, decided May 4, 2006).

In the 2005 decision, the court ruled that the Postal Service’s return-to-work provisions in Section 865 of the Employee and Labor Relations Manual (ELM) cannot be applied to bargaining unit employees returning from FMLA-protected absences. The court determined that the Postal Service can require only a short statement from an employee’s medical provider to the effect that the employee is fit to return to duty. The court reasoned that “the provisions of the FMLA simply require an employer to rely on the evaluation of the employee’s own health care provider” and that the Postal Service can-not impose its “more burdensome” return-to-work requirements on its employees.

Following the first decision by this federal appeals court, the Postal Service petitioned for a rehearing of the case, with the Bush administration’s Department of Labor supporting the petition. In response, the Court of Appeals vacated its first ruling and granted the petition for rehearing before the same three-judge panel. It allowed the DOL to participate as an amicus curiae (friend of the court) and directed the parties, including DOL, to file briefs addressing the narrow issue of whether the Labor Department’s regulations are sufficiently specific to warrant judicial deference to them.

In its initial opinion, the court acknowledged that one section of the FMLA “permits employers to impose, as a condition of returning to work, a uniformly applied practice or policy that requires each employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this paragraph shall supersede a valid state or local law or a collective bargaining agreement that governs the return to work of such employees.”[Emphasis added.]

However, the court said that it had to consider the “interplay” between this provision and another in the same law that says: “[T]he rights established for employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan.”

The appeals court concluded that “any provision of a collective bargaining agreement that replaces provisions of the Act or its regulations must grant more or equal, not less, protection to the employee” and that “[T]his reading of the statute seems to us to be the only reasonable way to harmonize the plain wording of the two sections.”

A Second Decision

In its second decision, the court cited Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984) for the principle that “if the intent of Congress, as expressed in the language of the statute [law], is clear with respect to this issue, then ‘that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’”

The appeals court stressed, however, hat the Chevron decision also indicated that if the “statute is silent or ambiguous with respect to the specific issue,” the court must defer to the agency’s interpretation of the statute if it is based on “a permissible construction of the statute.” The relevant agency in this matter is the Department of Labor, which administers the Family and Medical Leave Act.

In a ruling that constituted a clear reversal of its prior reasoning, the federal appeals court indicated that its reading of these statutory provisions can result in two opposing interpretations and, “Given the shortcomings with each interpretation, we are not able to conclude that Congress clearly addressed the question at issue through the statutory language.”

It then turned to the interpretive regulations of the Department of Labor to resolve the issue in this case. The court concluded that postal handbooks and manuals affecting working conditions are incorporated by reference into the Collective Bargaining Agreement. The court also concluded that DOL’s regulations “clearly state that a CBA takes precedence over the statutory requirements [of the FMLA]”and also in examples provided “indicates that the CBA may impose more stringent return-to-work requirements on the employee than those set forth in the statute.”

The appeals court then found the DOL’s interpretation of the FMLA statute to be a “reasonable one” requiring deference. To support this finding, it reasoned that DOL’s interpretation “avoids a construction of the statute that would render the last clause of [29 USC Section 2614(a)(4)]superfluous” by not interpreting a CBA to have precedence over statutory protections “only if those protections were greater than that provided in the Act.”

After reviewing this matter with our attorneys, we have come to the conclusion that the likelihood of overturning the Seventh Circuit’s Court of Appeals’ decision is not good given the current makeup of the courts. For that reason, the APWU’s attorneys have notified the plaintiff that we will not be appealing this decision further.

There is, however, a pending national-level dispute over the Postal Service’s return-to-work requirements for FMLA-covered absences. We are currently reviewing those cases to determine our best course of action on this issue.

[ Back to Top ]