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

Advanced Search

Printer-Friendly Page

(This article was first published in the Mar/Apr 2005 issue of The American Postal Worker magazine.)

APWU Wins Major Attendance Case

Greg Bell, Director
Industrial Relations

An arbitrator has sustained the APWU’s position in two of three outstanding issues in a significant attendance case. In a ruling in late January, Arbitrator Shyam Das said that the Postal Service may not require an employee to describe the nature of an illness or injury during a phone call to report an absence from work. He also ruled that the USPS policy on second and third medical opinions is inconsistent with the Family & Medical Leave Act and the National Agreement.

The arbitrator found that management is not in violation of the FMLA, however, when it requires medical evidence for absences of more than three days in instances in which an employee makes a request to substitute paid sick leave for unpaid intermittent FMLA leave.

The disputes concern the Postal Service’s Resource Management Database (RMD) and its Web-based Enterprise Resource Management System (eRMS) attendance policy, which was first implemented in 2000. In a national pre-arbitration settlement in March 2003, the Postal Service and the APWU reached an agreement that resolved most of the disputes regarding the policy.

That settlement addressed Privacy Act issues, the improper retention of disciplinary records, multiple call-in requirements, medical documentation for absences of three days or less, and fixed numbers of absences triggering discipline.

However, several issues remained outstanding, specifically: management asking the nature of illness or injury during an employee call-in; FMLA second- and third-opinion procedures, and medical documentation requirements to substitute paid leave for unpaid intermittent FMLA leave. The recent national-level arbitration decision has resolved these issues.

Nature of the Illness

Since the implementation of RMD/eRMS, employees in many locations were being asked to provide the “nature of the illness” at the time of the callin notifying management of the absence. The union contended this was inconsistent with the requirements of the Employee and Labor Relations Manual (ELM), unnecessarily intrusive into employee privacy, and not needed for any legitimate business purpose.

Arbitrator Das agreed. The primary purpose of the call-in is not to substantiate the employee’s incapacity to work, he concluded, but to notify the Postal Service as soon as possible that the employee is going to be absent. For that, a simple statement that “I am sick” might be sufficient, the arbitrator said.

Another major purpose of the call-in, Das found, is to determine whether the absence may be covered by FMLA. “In order to make the necessary FMLA determination,” Das wrote, the absence control supervisor “need not ask the employee to describe his/her symptoms or to otherwise describe the nature of the illness.” The supervisor can simply ask whether the leave request is for an existing FMLA condition, or can describe to the employee what in general constitutes an FMLA covered condition and ask the employee if the leave is related to such a condition.

Information from an employee calling to report an absence may be needed for two other purposes, Arbitrator Das found. One is to determine whether the absence is due to a job-related injury, which a supervisor can ask about directly. Another is to determine whether an absence is for a condition that requires a return-to-work certification. “This can also be done without asking employees to specifically describe the nature of their condition,” the arbitrator wrote.

Accordingly, the arbitrator ruled that when calling in, an employee may be asked questions necessary to make FMLA determinations, or to determine whether an absence is job related or requires return-to-work medical documentation, but may not otherwise require employees to describe the nature of their illness/injury.

FMLA Second and Third Opinion Process

The Family &Medical Leave Act provides that, in any case in which the employer has reason to doubt the validity of the medical certification provided by an employee, the employer may require, at its own expense, a second medical opinion. Furthermore, in any case in which the second opinion differs from the opinion of the employee’s healthcare provider, the employer may require a third opinion. Although this opinion also will be provided at the employer’s expense, it must be approved jointly by both parties. The opinion of the third healthcare provider is final and binding.

In conjunction with the implementation of RMD/eRMS, the Postal Service developed a series of form letters, including one to be sent to the employee after the employer has obtained a second opinion that differs from the first. This form letter instructs the employee that, “if you do not accept these results, you must notify [the Postal Service] within five calendar days of receiving this letter, and a third opinion appointment will be scheduled.” Failure to act within the five days, the letter says, means the second opinion will go on record as the final decision.

The union contended that because the FMLA provides that only the employer can require a third doctor’s opinion, this form letter improperly made such a request the employee’s responsibility. Further, the USPS form letter creates a “default rule” under which an employee who does not take the initiative to request a third opinion is considered to have accepted the second doctor’s opinion as final.

The union pointed out that under the law, it is the employer’s option to request a third opinion; if the employer chooses not to seek a third opinion, the employee is not bound by the second opinion.

Arbitrator Das found that the Postal Service’s procedure departs from and is inconsistent with the FMLA. Furthermore, there is no justification, the arbitrator wrote, for equating an employee’s failure to request a third opinion with the employee’s acceptance of the second opinion as binding. The arbitrator found that the Postal Service’s practice violates the FMLA and the National Agreement and accordingly directed it to rescind the disputed policy.

FMLA Paid Leave Documentation

The ELM requires an employee to submit “medical documentation or other acceptable evidence of incapacity for work” for an absence in excess of three days.

The FMLA provides for medical certification of a serious condition that indicates the need for intermittent leave in the future; when and if that occurs, the FLMA permits an eligible employee to use unpaid FMLA leave. However, the FMLA also limits the frequency at which an employer can request recertification for a covered condition. Therefore, when an employee on unpaid FMLA-covered leave is absent in excess of three days due to a previously certified condition, the Postal Service may not (subject to certain exceptions), require additional documentation as a condition for granting FMLA.

However, the USPS continues to require medical evidence for absences of more than three days when the request is for paid leave, even when there is FMLA certification on record. The union contended this was a violation of the FMLA.

But the arbitrator found that the Department of Labor’s FMLA implementing regulations provide that “substitution of paid sick/medical leave may be elected to the extent the circumstances meet the employer’s usual requirements for the use of sick/medical leave. An employer is not required to allow substitution of paid sick leave or medical leave for unpaid FMLA leave in any situation where the employer’s uniform policy would not normally allow such paid leave.”

We feel that the Postal Service’s demand for medical evidence has always been for purposes of substantiating the absence rather than for the type of pay. However, the arbitrator found that requiring medical evidence for absences of more than three days does not violate the law, the National Agreement, or existing postal regulations.

Nonetheless, the rulings represent an important victory for APWU members. A copy of the full text of the award can be found at www.apwu.org.

[ Back to Top ]