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

APWU Wins Landmark FMLA Case

Greg Bell, Director
Industrial Relations

The union won a major victory this summer, when a federal appeals court ruled that the Postal Service’s return-to work requirements for absences of more than 21 days are in conflict with the Family and Medical Leave Act.

The ruling invalidates key USPS regulations that require employees returning from approved FMLA leave of more than three weeks to provide detailed medical documentation or to submit to a medical examination by a physician selected by the Postal Service before it will allow them to return to work.

“The provisions of the FMLA simply require an employer to rely on the evaluation of the employee’s own health-care provider,” the court said. “The return-to-work certification need not contain specific information regarding diagnosis, prognosis, treatment and medication.” The court found that the Postal Service’s return-to-duty regulations “impose a greater burden on the employee, and therefore cannot be employed ... in implementing the return to- work provisions of the FMLA.”

The July 19 decision of the Appeals Court for the Seventh Circuit reverses a ruling by the U.S. District Court for the Central District of Illinois on Nov. 10, 2003. There are no contrary or competing decisions in the other circuits.

The APWU’s counsel represented the plaintiff-employee in this case, who is a member of the Decatur (IL) Area Local. (Rodney Harrell v. USPS; U.S. Court of Appeals for the Seventh Circuit, No. 03-4204, July 19, 2005.)

Significance of Decision

The ruling is significant not only for postal workers, but for all employees covered by the Family and Medical Leave Act. It is especially gratifying for our union, because the APWU has been pursuing this dispute since 1997. In fact, the APWU was the only postal union that challenged the Postal Service’s return-to-duty medical requirements.

The ruling applies not only to absences of more than 21 days, but also to the other return-to-duty circumstances listed in Section 865 of the Employee & Labor Relations manual (ELM) and USPS Publication 71 (Notice for Employees Requesting Leave for Conditions Covered by the Family and Medical Leave Act). These circumstances include absences due to exposure to communicable or contagious diseases, mental or nervous conditions, diabetes, cardiovascular disease, epilepsy, or conditions involving hospitalization.

Background of Case

This case arose after the employee submitted medical certification that he would be absent for approximately four weeks due to a serious health condition. He later submitted a second medical certification in which his doctor confirmed that he was able to return to work.

The Postal Service informed the employee that before being allowed to return to work, he would have to submit “medical documentation outlining the nature and treatment of the illness or injury, the inclusive dates you were unable to work, and any medicines you are taking,” and that he “may be required to be examined by the Postal Medical Officer.”

When the employee tried to return to work without submitting additional documentation, he was told that he had not been cleared for duty and that he was to report for an examination by a Postal Service contract physician. The employee refused to consent to an examination on the basis that he had already provided adequate medical information and that he was entitled to return to work under the Family and Medical Leave Act.

Thereafter, the Postal Service informed him that if he did not provide appropriate documentation describing the nature of treatment he received and a list of medications, he would be considered AWOL and subject to discipline, including removal. He was terminated effective April 27, 2000. The APWU agreed to have the union’s counsel provide representation and pay other expenses associated with the litigation.

District Court’s Decision

In U.S. District Court, the union’s attorneys argued that the Postal Service violated the FMLA by failing to restore him to work after he presented certification from his doctor; by requiring that he submit to a medical examination by a USPS-contract physician before it would consider allowing him to return to work, and by terminating him because he took FMLA leave.

The federal district court rejected these arguments and granted a summary judgment in favor of the Postal Service. It determined that the USPS return-to-duty regulations merely “alter the procedure by which employees go about being restored” to work, and neither the requests for additional information or an examination before being permitted to return to duty were “so onerous that it effectively abrogates [the plaintiff ’s] right of restoration under the FMLA.”

The union’s attorneys filed an appeal in the U.S. Court of Appeals. There, the Postal Service argued that it had a right to require the employee to provide sufficient medical documentation or to be cleared for duty by a contract physician before returning to work. It argued that the FMLA’s certification provisions do not supersede a valid collective bargaining agreement that governs the return to work for such employees.

Court of Appeals Ruling

According to the appeals court, the pivotal issue in this case is “whether the Postal Service can rely upon its return to- work regulations, as incorporated into a valid collective bargaining agreement, to impose requirements on employees that are more burdensome than what is required by the return-to-work provisions of the FMLA.”

The court acknowledged that the Family and Medical Leave Act permits employers to impose “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.” However, the court stressed that the FMLA specifically provides that “The 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.”

“To give effect to the right to take leave under the FMLA,” the court concluded, “Congress designed the statute to require employers to restore employees to work after taking such leave upon a basic showing of being able to perform their duties, which is done by a simple statement to that effect from one’s own physician.” Conditions imposed upon an employee upon returning to work “can be other than those contemplated by the statute,” the court said, “if those conditions are set forth in a governing collective bargaining agreement.”

The appeals court stressed, however, 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.”

But the appeals court also noted that “nothing in the FMLA, or its implementing regulations, forbids a more stringent fit-for-duty examination once the employee has returned from FMLA leave, so long as any such examination is job-related and consistent with business necessity in accordance with Americans with Disabilities Act guidelines.”

Therefore, if an employer “has doubts about the employee’s ability to do his job” after he has returned to work by presenting the required certification from his physician, the employer “is free to address that issue after the employee is reinstated from FMLA leave.”

Please note: The standard that such actions must be “job-related and consistent with business necessity” requires the Postal Service to have a reasonable belief supported by objective evidence that an employee’s ability to perform essential job functions will be impaired by a medical condition; or that an employee will pose a direct threat due to a medical condition.

The union will take all necessary action to ensure that the Postal Service complies with employees’ FMLA rights.

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