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Arbitrator: USPS Form Letters Violate FMLA

Greg Bell, Director
Industrial Relations

(This article first appeared in the January/February 2009 issue of The American Postal Worker magazine.)

In a national-level award issued Oct. 13, 2008, Arbitrator Dennis R. Nolan found that certain form letters that the Postal Service planned to require employees to use when seeking leave under the Family and Medical Leave Act (FMLA) violate the law. Arbitrator Nolan ordered the Postal Service to revise the form letters to comply with the FMLA.

The initial grievance was filed by the National Association of Letter Carriers in 2001, after the Postal Service notified postal unions of its plans to issue 19 form letters that the USPS said would ensure uniformity in the treatment of FMLA claims.

Following lengthy discussions, the NALC and the USPS were able to reach a pre-arbitration agreement that resolved their differences with regard to 12 of the form letters, with seven letters remaining in dispute. The case was submitted to arbitration. Because the issue affected our members, the APWU intervened in the case, as did the National Postal Mail Handlers Union.

After considering the evidence, Arbitrator Nolan sustained the grievance in part and denied other aspects of the dispute. While finding that some of the letters are in compliance with the law, the arbitrator concluded that three of the letters are inconsistent with FMLA.

The Basic Grievance

The grievance alleged that the form letters in dispute violate the FMLA, and also violate Articles 5 and 19 of the Collective Bargaining Agreement.

Under the FMLA, employers may require an employee to submit a medical certification issued by a healthcare provider (HCP) in order to support a leave request. Section 825.306 of the Department of Labor (DOL) regulations, which specifies what information an employer may require in an employee’s medical certification, expressly states that an employer may not require additional information beyond that listed in the DOL’s FormWH-380.Moreover, regardless of the form being used, the information sought “must relate only to the serious health condition for which the current need for leave exists.”

Furthermore, Section 825.307 of the DOL regulations outlines the options available to an employer who questions the adequacy of a medical certification. Under 825.307, an employer may, with an employee’s permission, contact the employee’s HCP to seek clarification or to authenticate the medical certification. Alternatively, the employer may invoke the second and third opinion process if the employer “has reason to doubt the validity” of the medical certification.

The Department of Labor recently announced significant changes to the FMLA regulations. (See Page 7.) Among the changes are that employers may contact the healthcare provider without the employee’s knowledge or consent, provided that the employer uses a healthcare provider, a human resources professional, a leave administrator, or a management official other than the employee’s direct supervisor to do so. Unfortunately, this new rule may impact the practical effects of the Nolan award.

Because the new regulations were issued so late in the final days of the Bush administration, President-Elect Barack Obama and the new Congress will have an opportunity under the Congressional Review Act to reverse them without engaging in a lengthy legislative process.

Three of Seven: ‘Inconsistent’

Arbitrator Nolan held that three of the seven letters at issue in this dispute are inconsistent with the FMLA.

Sample Form Letter 12B – The Postal Service planned to send this form letter to employees whose medical certification is considered to be “incomplete” or “non-responsive” as to the expected frequency and duration of incapacity due to a chronic condition (i.e. if the HCP simply noted the frequency and duration as “unknown”). The letter states that the employee has 15 days to submit a complete certification. The letter also goes so far as to suggest that employees must provide their general “medical history,” as well as an examining doctor’s experience with the condition. The letter says that this will give the Postal Service “guidance as to how frequently the employee might be incapacitated and for how long.”

The unions argued that Letter 12B asks employees for more information than the regulations allow. We also noted that it asks for information that would merely supplement – rather than clarify – the submitted certification. Finally, the unions also argued that by referring to an employee’s general medical history, the form was seeking information beyond the scope of the medical condition at issue. The FMLA allows employers to seek information only about that particular condition.

Nolan sustained this portion of the grievance, finding that, under the FMLA, the Postal Service may not write directly to an employee in an attempt to clarify an ambiguity. It may only ask for the employee’s permission to allow the USPS medical officer to seek clarification from an employee’s HCP.

Sample Form Letter 13A – Like Letter 12B, Letter 13Awas to be sent to employees in instances in which the Postal Service has determined that it needs clarification with regard to the frequency and duration of an employee’s incapacity. Letter 13A required that an employee give a clarification inquiry (Letter 13B) to the appropriate HCP and ask that the HCP address the concerns stated therein.

Letter 13A also stated that the employee “must sign” an authorization form that would allow the HCP to release the relevant medical information to the Postal Service. Attached to Letter 13A was a copy of PS Form2488 (Authorization for Medical Report). The letter also gives the employee the option of using a form provided by the HCP.

The unions objected to Letter 13A on the grounds that it asks an employee to cure the deficiencies in the medical certification rather than simply requesting the employee to grant permission for the USPS medical officer to do so.

The unions also argued that although an employee’s authorization is necessary for the USPS to have its medical officer make inquiries, by requiring that employees “must sign” an authorization form, Letter 13A could mislead them into believing that they are obligated to do so.

Arbitrator Nolan agreed with the unions, ruling that Letter 13A conflicts with Section 825.207(a) of the FMLA regulations. Under that section, “the employer may only seek the employee’s permission to contact the HCP. If the employee grants permission, then the Postal Service’s medical officer, not the employee, must send the request to the HCP.”

The arbitrator also agreed that the language stating that an employee “must sign” an authorization form, while acceptable if taken literally, could be misinterpreted. Nolan said that employees could read “must sign” as a command, rather than as a request for permission.

The Postal Service cover letter, the arbitrator said, must avoid any implication that an employee “must sign” a release.

Sample Form Letter 14A – Letter 14A is sent directly to employees to seek clarification on the extent of an employee’s incapacitation (i.e. whether the employee is unable to perform work of any kind, unable to perform certain essential functions of his or her job, or must be absent for treatment of the condition). Similar to Letter 13A, Letter 14A asks an employee to give a copy of a clarification inquiry (in this instance, Letter 14B) to the HCP.

The unions argued that Letter 14A improperly places the burden on the employee by instructing the employee to provide Letter 14B to the HCP; that Letter 14A asks for information that is supplementary rather than qualifying; and that Letter 14A asks the employee to sign a release that may be broader than necessary. The unions also objected to the fact that Letter 14A omits reference to the employee’s option to use a release form other than the PS Form 2488.

The Remedy

The arbitrator agreed with the unions that Letter 14A violates the FMLA by asking the employee to forward the clarification inquiry (Letter 14B) to the employee’s HCP instead of contacting the employee’s HCP directly. Nolan noted that the Postal Service promised in its post-hearing brief to correct the omission and to revise the “you must sign” language in this instance so that employees are made aware that they “may use”Form2488 or an alternative release provided by the HCP.

Finding that these three form letters are in violation of the Family and Medical Leave Act, Arbitrator Nolan directed the Postal Service to revise 12B, 13A, and 14A so that they are in compliance with the law.

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