Management's Attendance Policies –

Ignoring FMLA?

By Clerk Craft NBA Sam Lisenbe

Many of our APWU members have been adversely affected by the Postal Service’s recent attendance policy changes. Most of the postal districts now require employees to call an 800 number to report an absence, speak to someone who does not directly supervise them, provide explanations for their absences that far exceed the requirements of the Employee & Labor Relations Manual (ELM), and submit documentation for Family & Medical Leave Act (FMLA) absences to a manager who, again, has little or no actual knowledge of that employee because the FMLA “Coordinator” does not supervise the employee.

Although there are several disputes regarding the changes in Postal Service attendance policies, the purpose of this article is to concentrate on, even reiterate, some of the primary FMLA issues that are plaguing our members. There are documents either jointly agreed upon by the APWU and the Postal Service or simply signed by Postal Service officials at the headquarters level that should alleviate some of the more common problems experienced by the membership.

For instance, the issue of restricted medical information continues to be misinterpreted. The EL-806 Handbook defines “restricted medical records” as containing a prognosis and/or diagnosis. Numerous supervisors insist on retaining restricted medical information personally, yet the Service has agreed that this is improper. In September 12, 1996 correspondence, USPS Manager of Contract Administration Anthony Vegliante stated:

“Management may maintain WH-380, union FMLA forms, or other certifications from health care providers that do not contain restricted medical information. Documents containing diagnosis or prognosis must be returned to the employee, destroyed, or forwarded to the medical unit.”

Should you be required to submit restricted medical documentation, insist that your supervisor, upon examining it and acting on your leave request, return it to you, destroy it or substantiate that it has been dispatched to the appropriate medical officer. If the supervisor refuses, contact your steward.

Employees who suffer from chronic health conditions (diabetes, high blood pressure, etc.) are in many cases required to recertify their condition at the beginning of each year. However, Doug Tulino, USPS Manager of Labor Relations Policies and Programs, in a letter dated February 9, 2000, agreed:

“… employees should not be required to automatically provide recertification for a serious health condition simply because the leave year has ended and a new leave year has begun. Managers should refer to 29 CFR Part 825.308 for the circumstances and the time frame under which recertification may be required.”

CFR (Code of Federal Regulations), Part 825.308, lists the circumstances under which an employer may request subsequent recertifications for serious health conditions. None of the identified circumstances allow a blanket requirement to recertify simply because a new leave year begins.

In a March 15, 2000 letter from Mr. Tulino, he explains the Postal Service’s position on the issue of “the employer’s right to require employees to submit to a USPS fitness for duty prior to their return from FMLA”. Tulino states:

“Postal Service policy is that employees may not be required to submit to fitness-for-duty examinations by physicians employed by or under contract with the Postal Service before they return to duty from an absence covered under the FMLA.”

It should be noted that employees, prior to their return to duty date, should submit medical documentation that states: 1) the employee was incapacitated; 2) lists the dates of incapacitation; and 3) the date on which the employee may return to duty. If this medical certification is submitted prior to the employee’s return to duty date, management should have no reason to prevent the employee from returning to work on the day his/her physician allows. Nevertheless, if you are required to be examined by a USPS-appointed physician, you should seek proof that the physician is not “employed by or under contract with the Postal Service”.

In relation to the return to work issue, there are certain health conditions that the Service has listed in the ELM, Section 865, that require an additional medical explanation. Employees who return to duty “after an absence due to exposure to a communicable or contagious disease, mental or nervous condition, diabetes, cardiovascular disease, epilepsy, a condition involving hospitalization, or absences of 21 days or more due to their own health condition … must submit medical evidence of their ability to return to work”. In addition, the employee’s medical documentation must state “unequivocally” that the employee is “fit for the performance of their duties without hazard to oneself or others” or indicate “the duties of their position that they are capable of performing”.

Therefore, if you suffer from one of the health conditions listed in the preceding paragraph, please ensure that your physician states that you are absolutely able to perform your duties without any hazard to yourself or others. Management is delaying the return to duty of many employees simply because of their condition and the fact that an employee’s physician is not affirming that the employee will not be a hazard upon returning to work.

These are but a few, albeit major, of the problems experienced by our members regarding FMLA issues. The Union is here to assist with these problems; however, there is an additional avenue that we should urge our members to explore. The U.S. Department of Labor (DOL), Wage and Hour Division, interprets the Family & Medical Leave Act. As a result, the DOL should be notified when an employee believes that management is violating his/her FMLA rights. The Service knows that thousands of FMLA grievances means a delay in arbitrating each and every one of them, but if management also has to deal with thousands of complaints through the DOL, perhaps they will then be forced to actually confront their continual violations of the Family & Medical Leave Act.

If any APWU member would like to obtain copies of the correspondence cited in this article, please contact me at 972-721-0063 or at 800 W. Airport Freeway, Lobby Box 6093, Suite 1031, Irving, TX, 75062.