USPS Withdrawal of a Limited Duty/ Permanent Rehabilitation Assignment

As the Postal Service’s National Reassessment Process (NRP) expands across the country, a growing number of limited duty and/or rehabilitation jobs are being withdrawn. At the national level the APWU will continue to monitor each phase of the reassessment process. Local and state organizations are encouraged to keep us informed, as we are paying special attention to the way that the USPS implements its program at each site. At the moment our particular concerns are whether management is making a good faith effort in finding work for injured employees, and whether seniority rights are being adhered to when reassignments are made.

At the local level, if management determines that there is no medically suitable work for an employee, they will inform the employee of their decision, and the employee will be sent home. When this occurs there are normally two basic actions that the employee and the union should consider.  

Filing a Claim with OWCP

First, an injured employee who has a limited duty/rehabilitation job withdrawn by the Postal Service, and who wants to claim wage loss compensation from OWCP, should file a Form CA-7, Claim for Compensation and a Form CA-2a, Notice of Recurrence. Specifically, the recurrence of disability (inability to work) in these cases is the result of a work stoppage caused by the Postal Service’s withdrawal (for reasons other than misconduct) of a limited duty/rehab assignment which was created specifically for the injured employee.

The employee should indicate in Block #16 on OWCP Form CA-2a that the recurrence claim is for “Time Loss From Work”. Also, write “NRP” in that block. In Block #21 indicate that the recurrence is the result of work stoppage caused by the Postal Service’s withdrawal of a medically suitable job which was uniquely created for the employee, and was not available to other employees by either bid or application.

We suggest that if the employee has a copy of the original limited duty/rehab job offer, he or she should attach it to the Form CA- 2a. Also, ask the Postal Service to document in writing the withdrawal of the limited duty/rehab job and to provide a copy to the employee. This should also be attached to the CA-2a. If refused, a written statement from the employee and/or union should suffice. The employee should submit Forms CA-7 and CA-2a to the USPS, retaining a copy of each for their personal records. The USPS must also provide the employee completed copies of these forms and submit the forms to OWCP in a timely manner.

Conditions previously accepted by OWCP are not automatically approved when a recurrence claim is filed. Generally, if the employee has returned to work for a period of 90 days following a compensable injury, OWCP requires updated medical documentation. We expect that in most cases OWCP will authorize payment of wage loss compensation if the current medical documentation establishes that the injured employee continues to suffer from residual restrictions caused by their accepted injuries. However, if OWCP has previously made a formal Lost Wage Earning Capacity (LWEC) determination following the employee’s original return to work, they will notify the employee that they are not going to pay compensation. For further information and guidance on this issue, please go to "When OWCP Denies Compensation Based on A previous LWEC Determination."

If OWCP accepts the claim of recurrence of disability, the employee can expect that sooner or later OWCP will place him or her into a vocational rehabilitation program in an effort to find medically and vocationally suitable work in the private sector.

Filing a Grievance     

Second, the specific fact circumstances in each case should be developed by conducting a grievance investigation. The fundamental obligation of the Postal Service is to make every effort to provide medically suitable employment to employees who have partially recovered from compensable injuries. In making such assignments the USPS should minimize any adverse or disruptive impact on these employees (see specific ELM references below).

Since these are contract grievances, the Union has the burden to provide specific fact information in order to prove that such medically suitable work exists and to list the specific duties that the injured employee is capable of performing. Normally, the first place to look would be to the job the employee was performing before the implementation of the NRP. (Sample questions: What work was the employee performing? Where did the work go? Will anyone else be performing the work? Is the work still medically suitable, etc.?)

As part of a grievance investigation the steward should request the “546 Worksheet” or “Priority for Assignment Worksheet”. These Postal Service worksheets must be used by management to document their search for a rehab and/or limited duty job. All details relating to the search should be requested by the steward, e.g. all supervisors contacted, offices outside of the employee’s current facility which were searched, all the specific dates for every action, etc. Also, interview, as appropriate, the supervisors who indicated on a worksheet that there was no medically suitable work available in their area of responsibility. (Sample questions: What efforts were made to reasonably accommodate the employee with medically suitable work?; Did the supervisors meet their obligation to minimize any adverse or disruptive impact on the employee?; Did their search for medically suitable work include all facilities?, etc).

It may also be useful to examine the record of clock rings/”move” reports of the rehab/limited duty employee over a period of time. These might be used to document the work that the impacted employee had been performing. If clock rings and labor distribution codes were not used to track the actual duties performed by the employee, the employee should provide a written statement detailing this information.

Keep in mind that the Postal Service’s obligation is to provide medically suitable work. There is no language in applicable Article 19 handbooks and manuals that requires such jobs to consist of “productive” or “necessary” work. Normally, rehabilitation/limited duty jobs are uniquely created assignments that consist of a subset of duties which are included in a standard position description. They are assignments which “would not have existed, but for the [Postal Service’s] obligation to find work for the injured employee,” and are assignments “not created to meet operational needs of the Postal Service, but to fit medical restrictions of the injured employee with minimum disruptive impact on the employee.” (See national level arbitration award by arbitrator Shyam Das: E90C-4E-C95076238).

The remedy that would normally be requested in this type of grievance would be to provide medically suitable employment as required by the ELM; EL 505, Injury Compensation; and the Code of Federal Regulations (See references below). Because the employee was ready, willing and able to continue working, and the USPS withdrew the available work, the make whole remedies should include providing medically suitable employment, paying for lost work hours (if no compensation was paid), restoring annual and sick, etc.

Principle References

ELM 546.11 “The USPS has legal responsibilities to employees with job-related disabilities under 5 USC 8151 and the Office of Personnel Management’s (OPM) regulations...” [See CFR 353.306 cited below for OPM regulations.]

ELM 546.142 a. “When an employee has partially overcome a compensable disability, the USPS must make every effort toward assigning the employee to limited duty consistent with the employee’s medically defined work limitation tolerance. In assigning such limited duty the USPS should minimize any adverse or disruptive impact on the employee.”

ELM 546.142 a.(4) “An employee may be assigned limited duty (rehabilitation assignment) outside of the work facility…only when there is not adequate work available…at the employee’s facility…” The ELM does not limit the search to find medically suitable work to the commuting area. Therefore, it is our opinion that the USPS must conduct a search agency wide when work is not available in the employee’s facility, making every effort to assign the employee to work within the employee’s craft, schedule and as near as possible to the regular work facility they are normally assigned.

ELM 546.65 and EL 505, Injury Compensation, Chapter 11-6. Both of these cites establish in detail that if management refuses to accommodate a partially disabled employee, then that employee must be provided with a copy of Postal Service Headquarters’ final concurrence of such refusal, be notified in writing of the USPS refusal to accommodate, and also be notified of their right to appeal to the Merit System Protection Board (MSPB). See also EL 546.3 and 546.4.

EL 505, Injury Compensation Chapter 11. “Procedures.” “It is the policy of the USPS to make every effort to reemploy or reassign IOD employees with permanent partial disabilities...”

EL 505, Injury Compensation Chapter 11.7 “Identifying a Modified Job Assignment.” A current employee who “is capable of performing his or her core duties with only minor modifications” is not considered to be in a modified job assignment. However, it is our understanding of Postal Service policy that such an employee could still be designated as a “permanent rehab” employee on their “Form 50” (Notice of Personnel Action). In our opinion, such employees should be minimally impacted by the Reassessment Process since they are performing “core duties.”

CBA, Article 2, “Non-Discrimination and Civil Rights” states that “In addition, consistent with the other provisions of this Agreement, there shall be no unlawful discrimination against handicapped employees, as prohibited by the Rehabilitation Act. [See EL 307, Reasonable Accommodation (January, 2000)].This manual states: “In other words, the Rehabilitation Act requires the employer to look for new or innovative ways to alter, restructure, or change the ways of doing a job in order to allow a qualified person with a disability to perform the essential functions of a particular job”.] For additional information see the section below titled,“EEO Complaints”.

CBA, Article 3, “Management Rights” directs that the application of management rights must be “consistent with applicable laws and regulations.” The applicable regulation is Part 353.306 of Title 5, Code of Federal Regulations (CFR), which states that “agencies must make every effort to restore, according to the circumstances in each case, an employee or former employee who has partially recovered from a compensable injury and who is able to return to limited duty.”

CBA, Article 21.4, “Benefit Plans ” establishes that employees are covered by theFederal Employees Compensation Act (i.e., subchapter I of chapter 81 of Title 5) and that the USPS will promulgate (publish officially) regulations which comply with the applicable regulations of OWCP. The applicable regulation is Part 10.505 of Title 20, CFR which states:

“What actions must the employer take?... (a) Where the employer has specific alternative positions available for partially disabled employees, the employer should advise the employee in writing of the specific duties and physical requirements of those positions. (b) Where the employer has no specific alternative positions available for an employee who can perform restricted or limited duties, the employer should advise the employee of any accommodations the agency can make to accommodate the employee’s limitations due to the injury”.

CBA, Article 5 , “Prohibition of Unilateral Action” establishes that “the employer will not take any actions affecting wages, hours and terms and conditions of employment as defined in Section 8 (d) of the National Labor Relations Act which violate the terms of this agreement or are otherwise inconsistent with its obligations under law.”

CBA, Article 34, “Work and/or Time Standards” establishes in “Part B” that “the employer agrees that any work measurement systems or time or work standards shall be fair, reasonable, and equitable”. Article 34 then goes on to describe in “Part B” through “Part I” the detailed process that must be followed if the USPS intends to change current, or institute new, work measurement systems, or work or time standards. The USPS at the Headquarters’ level has not given the APWU any notification, nor have they even suggested that they intend to create a specific standard of “productivity” for injured employees in rehab positions. The current applicable work standard for all employees is cited in “Part A” of Article 34: “The principle of a fair day’s work for a fair day’s pay is recognized by all parties to this agreement.”

In support of the argument that a partially disabled employee working in a rehabilitation job is in compliance with the principle of “a fair days work” we refer to the ELM, Chapter 546.21, "Compliance" which states that: “Reemployment or reassignment under this section must be in compliance with applicable collective bargaining agreements. Individuals so reemployed or reassigned must receive all appropriate rights and protection under the newly applicable Collective Bargaining Agreement.” We argue, then, that just like any other bargaining unit employee, a rehab employee is protected by Article 34 language from arbitrary work measurement systems or work or time standards.

Grievance Summary

When the USPS withdraws a limited duty and/or a permanent rehabilitation job the Union should argue, as appropriate according to the specific fact circumstances of the case, that such action:

1. Violates Clear CBA and handbook language; 
    
2. Is inconsistent and noncompliant with USPS obligations under applicable law and regulations; 
    
3. Contravenes the long standing criteria which has been applied consistently and uniformly by both the USPS and OWCP when making rehabilitation assignments, i.e. not whether an assignment is “necessary” or “productive,” but whether the job assignment is medically suitable or appropriate; 
    
4. Is inconsistent with clear and unambiguous controlling language and a longstanding mutually recognized practice; 
    
5. Is arbitrary and capricious in that “productive” and “necessary” are not contractually established work measurement standards; 
    
6. Violates Article 34 protection against arbitrarily created and selectively applied work measurement systems, or work or time standards; 
    
7. May give the appearance of violating ELM 542.33, “Penalty For Refusal to Process Claim” because if the USPS denies medically suitable employment to partially disabled employees, such behavior may induce and/or compel injured employees to forego filing claims because they observe the employer taking what appears to be retaliatory and punitive action against an employee who has an accepted OWCP claim.

Other Options

Appeal to the Merit System Protection Board (MSPB)  

The Code of Federal Regulations at 5 CFR 353, “Restoration To Duty From Uniformed Service Or Compensable Injury,” permits individuals with accepted compensable injuries to appeal to MSPB (whether the individual is a preference eligible veteran or not) the Postal Service’s failure to restore, improper restoration, or failure to return an employee following a leave of absence.

When the USPS separates, grants LWOP, restores or fails to restore an employee because of a compensable injury, they are required to notify the employee of his or her rights and obligations, including any MSPB appeal and/or grievance rights. However, regardless of notification, an employee should exercise due diligence in ascertaining his or her rights.

When an employee has partially recovered from a compensable injury the Postal Service must make every effort to restore the employee and return them to medically suitable work. At a minimum, this would mean treating the employee substantially the same as other handicapped individuals under the Rehabilitation Act.

A partially recovered employee may appeal to MSPB for a determination of whether the USPS acted “arbitrarily and capriciously” in denying restoration. Ordinarily, an agency’s failure to comply with their own rules and regulations would indicate that they acted in an arbitrary and capricious manner.

The Human Relations Department has prepared a guide that may be useful to an employee who decides to appeal to MSPB. It is not an official form, but may be useful in organizing the relevant documents and arguments to be presented to MSPB. The personnel action being contested would be “Failure to restore/reemploy/reinstate.” Appeals can be filed on line at their website, which is indicated below.

Individuals who would like to learn more about MSPB appeals can go to MSPB’s website:www.mspb.gov. Also, the APWU Store has two booklets for sale regarding MSPB: “Merit Systems Protection Board: The Hearing,” and “Merit Systems Protection Board: Principles & Procedures.”

EEO Complaints

The Rehabilitation Act of 1973, as amended, at Sections 501, 504 and 505 prohibits employment discrimination on the basis of disability. Discrimination is prohibited in all aspects of employment against persons with disabilities who, with reasonable accommodation, can perform the essential functions of a job. Certain aspects of the Americans With Disabilities Act (ADA) were amended in 2008, and the definitions, as amended, also apply to employees covered by the Rehab Act. These recent changes to the law clarified and broadened the definition of “disability”, thereby expanding the number and types of persons who are protected by these disability nondiscrimination laws.

The Equal Employment Opportunity Commission (EEOC) protects qualified applicants and employees with disabilities from discrimination in hiring, promotion, discharge, pay, job training, fringe benefits, classification, referral, and other aspects of employment on the basis of disability. [USPS EEO flyer] It requires that covered entities provide qualified applicants and employees with disabilities with reasonable accommodations that do not impose undue hardship.  

Any Postal Service employee who believes that he or she has been illegally discriminated against can contact an EEO counselor at (888) 336-8777. This counseling request must be made within 45 calendar days of the alleged discriminatory act. The counselor will attempt to help the parties agree on a resolution. The Postal Service may offer mediation as part of the EEO process. If the matter is not resolved, the EEO counselor will advise the employee of the procedures for filing a formal complaint.

Disability Retirement  

Interested employees should contact the USPS Shared Services Center at (877) 477-3273 and request individual pre-retirement counseling. This counseling is conducted by a Postal Service employee who can provide detailed information on retirement health benefits and life insurance programs, and provide basic annuity estimates. OPM makes the final decision regarding disability retirement. It will determine if the permanent medical condition has resulted in a deficiency in the employee’s performance, conduct, or attendance, or is otherwise incompatible with useful or efficient service. Application for disability retirement must be received by OPM within one year after the date of separation. [APWU Retirees Department FERS and CSRS disability retirement information.]

Separation-Disability

Reference: ELM 365.34 and ELM 545.9
Separation-Disability is an administrative action that can be taken by the Postal Service. It is not a retirement program, and should not be confused with disability retirement. An employee who suffers a job-related disability, for which OWCP compensation is being paid, should be granted LWOP by the Postal Service for an initial period of up to one year from the date OWCP compensation begins. If an employee is unable to return to work at the end of one year of continuous LWOP, and is not likely to return to work within the next six months, the Postal Service may remove the employee from Postal Service rolls by issuing a “separation by disability”. This separation should be initiated only after local officials have received permission from Postal Service Headquarters to take this action. Employees should not be separated for disability until given a written notice of the proposed action. Eligible employees have one year from separation to file for disability retirement or their rights will lapse. If a separated employee recovers either partially or totally, he or she can request that the Postal Service restore them to duty. If the Postal Service refuses, the employee may appeal this decision to MSPB.

OWCP’s Vocational Rehabilitation Program  

If the Postal Service does not provide medically suitable work to an injured employee, OWCP will offer vocational rehabilitation services to such employees in an effort to find them work in another federal agency or in the private sector. [Labor Department vocational rehabilitation services information, CA 810] OWCP will hire a rehabilitation counselor and assign that person to the employee in order to provide him or her with counseling and guidance, vocational testing, training, and placement help. These vocational services are ordinarily provided for up to ninety days. If the counselor determines that there are at least two jobs within commuting distance which the employee can perform, the employee will be notified of these two jobs and will be expected to acquire one of them. Whether an employee gets a job or not, OWCP compensation will be reduced by the earnings, or potential earnings, of that position. Vocationally rehabilitated employees hired into the private sector remain eligible for the Federal Employees Health Benefit Program as long as they receive at least one dollar of wage loss compensation from OWCP. It is our opinion that employees should not immediately be separated from Postal Service employment just because they are receiving vocational rehabilitation services. (See above: “Separation-Disability”)