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(This article first appeared in the September/October 2008 issue of The American Postal Worker magazine.)

Disputes Sparked by USPS Policies on FMLA

Greg Bell, Director
Industrial Relations

We have been unable to reach resolution on two-national--level disputes with the Postal Service over Family and Medical Leave Act (FMLA) issues. The disputes have been appealed to arbitration, and we want to make clear the union’s position in these cases so that appropriate grievances can be filed at the local level.

The first dispute concerns the Postal Service’s decision to require employees who have already provided medical certification for a serious health condition to automatically provide new medical certification, simply because the leave year during which it was filed has ended.

Consistent with the mutually accepted past practice since the FMLA was implemented in 1993, employees have not been required to provide new medical certification or recertification for a serious health condition whenever a new leave year has begun.

Moreover, in 2000, when some local managers began routinely demanding recertification, the parties at the national level agreed that employees should not be required to provide recertification for a serious health condition simply because a new leave year has begun.

What’s ‘New’

Under the FMLA, employers may request recertification “no more often than every 30 days and only in connection with an absence by the employee” due to pregnancy or a chronic or permanent/long-term conditions. The exceptions are when circumstances in the previous certification have changed significantly, or the employer has received information that casts doubt on the employee’s stated reason for an absence. The FMLA expressly prohibits employers from requiring second and third opinions when seeking a recertification.

We believe that the “new” medical certification referred to in the Postal Service’s current policy actually constitutes a request for a recertification of the same serious health condition. By characterizing it as a “new” certification, the Postal Service may require employees to undergo the second- and third-opinion process if management has reason to doubt the validity of a certification. This in turn allows the Postal Service to send the employee to a doctor of management’s choosing for the second opinion and to a doctor mutually agreed to by the Postal Service and the employee for the third opinion.

However, the Postal Service is now relying on a Department of Labor (DOL) opinion letter that it sought in order to unilaterally discontinue the mutually accepted and agreed-to practice. In response to a USPS request, the DOL presented an opinion stating that an employer may reinitiate the medical certification process with the first absence in a new 12-month leave year.

It should be noted that the Postal Service was advised that it may – not that it is required to – seek new medical certification. Yet under the disputed practice, employees are being required to provide new medical certification, even if circumstances described in the previous certification have not changed or been called into question. We feel that this is equivalent to harassment, particularly when an employee has just certified the condition or has recertified it during the previous 12-month leave year.

It is the APWU’s position that once employees provide the Postal Service with completed medical certifications from their healthcare provider pursuant to FMLA regulations, it is improper and inconsistent with established past practice, FMLA, agreements between the parties, and the Collective Bargaining Agreement for the Postal Service to automatically require employees to submit new medical certification or recertification simply because a new leave-year has begun.

Second Dispute

The second FMLA-related dispute involves the Postal Service’s refusal to accept medical certification submitted for chronic conditions that precedes the time of absence.

It is the APWU’s position – which is consistent with past practice, the CBA, and the FMLA – that before an absence begins, employees may submit a medical certification notifying the employer of an existing serious health condition and that the Postal Service does not have the right to refuse to accept medical certification submitted prior to the leave being taken.

The Postal Service has taken the position that until a leave request is made, there is no reason for the employee to submit or for the employer to accept medical certification of a serious health condition. We feel that by submitting FMLA certification before the dates of leave are known, the employee fulfills the obligations under the Act to provide the employer with notice of the need for leave as soon as is practicable.

For example, if an employee believes he or she has a serious health condition due to pregnancy or a chronic condition covered by the FMLA, the employee is entitled to submit medical certification not only before the leave begins but before the actual date that the leave will begin is known.

In fact, medical certification related to pregnancy or a chronic condition does not require the healthcare provider to identify the specific dates for when leave may begin if the employee is not presently incapacitated. The Act does require, however, that such medical certification must include whether the employee is presently incapacitated and an estimate of the probable number of, and the interval between, episodes.

If the employee is not presently incapacitated, the employee would not need to submit a Form 3971 (Notification of Absence). It is not until the employee actually becomes incapacitated due to pregnancy or a chronic condition that he or she would submit a Form 3971 requesting FMLA leave.

Intermittent Needs

In cases in which an employee will need leave intermittently, it absolutely is appropriate to submit FMLA certification before the dates of the leave are known. In such cases, the certification must state “whether it will be necessary for the employee to take leave intermittently or to work on a reduced leave schedule basis (i.e. part-time) as a result of the serious health condition, and if so, the probable duration of such schedule.”

And in cases where leave is necessary in order to care for a family member who has a serious health condition and the employee will need leave intermittently or to work on a reduced schedule, the medical certification must state “the probable duration of the need.”

In sum, we believe that it is unlawful for the Postal Service to refuse an employee’s effort to provide certification ahead of time. We also believe that the policy interferes with, restrains, and/or denies an employee’s exercise of his/her rights provided under the FMLA.

If you find yourself in either of these disputed FMLA leave situations, contact your steward on the workfloor and file a grievance. The grievance should request as a remedy that you be made whole, which would include reimbursement for the cost of obtaining new medical certification or recertification, travel expenses, and appropriate rate of pay for time spent obtaining the documentation at the direction of the Postal Service.

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