USPS Withdrawal of Permanent Rehabilitation Job Assignments

December 15, 2000

It has come to our attention that in a number of USPS Districts a policy is being initiated which can result in the withdrawal by the Postal Service of certain rehabilitations jobs that they claim are "non-productive". When the job is withdrawn the partially disabled employee is told not to report to work, and is instructed to file OWCP Form CA-7, Claim for Wage Loss Compensation. It appears that January 6, 2001 will be the effective date for further implementation of this new policy.

The Division of Federal Employees’ Compensation at the national level has informed us that they have received no notification from the Postal Service regarding this policy, nor has there been any discussion with the Postal Service regarding any changes in the long standing Joint DOL-USPS Rehabilitation Program. The preliminary response from Postal Service Headquarters indicates that this is not a national program, but they will investigate and provide the APWU with a formal response.

While this issue is being pursued at the national level the rights of any members of the APWU bargaining unit who have their permanent rehabilitation jobs withdrawn in this manner should be enforced through the grievance system. These employees should also file OWCP Form CA-7 as instructed by the Postal Page 2

Service. In addition, we suggest that they file OWCP Form CA-2a, Notice of Recurrence. This particular recurrence would be a recurrence of disability(inability to work). Specifically, the recurrence of disability is the result of work stoppage caused by the Postal Service’s withdrawal (for reasons other than misconduct) of a specific limited duty assignment which was created when the employee could not perform the full duties of his or her regular position. The employee should indicate in Block #16 on OWCP Form CA-2a that the recurrence claim is for time loss from work , and indicate in Block #21 that the recurrence is the result of work stoppage caused by the Postal Sevice’s withdrawal of the limited duty/rehabilitation assignment. We suggest that the employee attach a copy of the original rehab job offer to the Form CA-2a if they kept a copy of it.

In regards to grievances being filed as a result of a rehab job being withdrawn due to its "non-productivity", the language referenced below highlights relevant controlling language:

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 546.14 "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...the USPS should minimize any adverse or disruptive impact on the employee."

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 that employee must be provided with a copy of Postal Service Headquarter’s 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...."

CBA, Article 3, "Management Rights" directs that the application of management rights must be "consistent with applicable laws and regulations." Part 353.306 of Title 5, Code of Federal Regulations (CFR), 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 the Federal 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. Part 10.505 of Title 20, CFR reads: "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 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) for further discussion on reasonable accommodation. For example: "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". ))

Chapter 1-3, "Applicable Laws".

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 Headquarter’s 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 a rehab employee is protected by Article 34 language, from arbitrary work measurement systems or work or time standards just like any bargaining unit employee.

In summary, the theory to be argued in a grievance initiated as a result of the withdrawal by the USPS of a permanent rehabilitation job based on their claim that the job is "non-productive" is 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, i.e. whether the job assignment is medically suitable/medically appropriate, which has been applied consistently and uniformly both by the USPS and OWCP when restoring partially disabled workers to rehabilitation positions;

(4) is inconsistent with clear and unambiguous controlling language and a long-standing mutually recognized practice;

(5) is arbitrary and capricious in that the criteria is necessarily subjective, vague, and reliant on individual judgment. In addition, because "productivity" is neither an established, appropriate, nor an objective work standard it is highly susceptible to abuse, misuse, and erratic application;

(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 544.25, "Penalty For Refusal to Process claim" in that if the USPS arbitrarily denies medically suitable employment to partially disabled employees, such inappropriate behavior may induce and/or compel injured employees to forego filing claims because they observe the employer taking what arguably is retaliatory and punitive action against an employee who has an accepted OWCP claim.

We will keep you informed of any developments regarding this issue