USPS Withdrawal of Limited Duty or Permanent
Rehabilitation Job Assignments
OWCP Claims Process
If you are a member of the APWU bargaining unit and the USPS
withdraws your limited-duty or rehabilitation assignment, the union
recommends that you file a grievance and submit OWCP Form CA-7, Claim
for Compensation. In addition, OWCP Form CA-2a, Notice of
Recurrence, should be filed.
The employee’s inability to work — the “recurrence of disability” —
in such cases is caused by the Postal Service’s withdrawal of a specific
limited-duty or rehab assignment (for reasons other than misconduct).
Affected employees 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 the Postal Service’s
withdrawal of the limited duty or rehabilitation assignment. Employees
who have a copy of the original limited-duty or rehab job offer should
attach it to the Form CA-2a. Employees should also ask that the Postal
Service provide written notice of the withdrawal of the job offer, and
attach the notice to the Form CA-2a as well.
Grievance Handling
The following regulations may help support grievances that seek to
protect limited-duty or rehab jobs. However, they may not apply in every
circumstance.
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 Title 5, 353.301(d),
Code of Federal Regulations, cited below).
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 (9.49mb-pdf)—If
management refuses to re-employ a partially disabled employee the
employee must be provided with a copy of final concurrence of such
refusal by Postal Service Headquarters. Employees must be notified in
writing of the USPS refusal to accommodate, and must 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 (9.49mb-pdf)—“It
is the policy of the USPS to make every effort to reemploy or reassign
IOD employees with permanent partial disabilities…”
Collective
Bargaining Agreement, Article 3, Management Rights — The
application of management rights must be “consistent with applicable
laws and regulations.”
Title 5, Part 353.301(d), Code of Federal Regulations (CFR) —
“Agencies must make every effort to restore in the local commuting area,
according to the circumstances in each case, an individual who has
partially recovered from a compensable injury and who is able to return
to limited duty. At a minimum, this would mean treating these employees
substantially the same as other handicapped individuals under the
Rehabilitation Act of 1973, as amended.”
Collective
Bargaining Agreement, Article 21.4, Benefit Plans — Employees
are covered by the Federal Employees Compensation Act (i.e., subchapter
I of chapter 81 of Title 5). The USPS will promulgate (publish
officially) regulations which comply with the applicable regulations of
OWCP.
Title 20, Part 10.505, CFR — “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.”
Collective
Bargaining Agreement, Article 2, Non-Discrimination and Civil Rights
—“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, (September, 2003) 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”.]
Collective
Bargaining Agreement, Article 5, Prohibition of Unilateral Action —“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.”
Collective
Bargaining Agreement, Article 34, Section B, Work and/or Time Standards
—“The employer agrees that any work measurement systems or time
or work standards shall be fair, reasonable, and equitable.”
Article 34, Sections B through I, describes the process that must be
followed if the USPS intends to change work measurement systems or work
or time standards or implement new ones.
The USPS has not notified the APWU that it intends to create a
standard of productivity for injured employees in rehab positions. The
current applicable work standard for allemployees is cited in Article
34, Section A: “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
day’s work” refer to the
ELM, Chapter 546.21, Compliance, which states:
“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.”
Rehab employees are protected by Article 34 from arbitrary work
measurement systems or work or time standards like all other bargaining
unit employees.
When the USPS arbitrarily withdraws limited duty and/or a permanent
rehabilitation jobs the union may argue, as appropriate, that
such action:
-
Violates the Collective Bargaining Agreement and USPS Handbooks;
-
Is inconsistent and noncompliant with USPS obligations under
applicable law and regulations;
-
Contravenes the long standing criteria, (i.e. whether the job
assignment is medically suitable/medically appropriate), that has been
consistently and uniformly applied by the USPS and OWCP when restoring
partially disabled employees to rehabilitation positions;
-
Is inconsistent with clear and unambiguous regulations and a
long-standing mutually recognized practice;
-
Is arbitrary and capricious in that any criteria based on
“productivity” are necessarily subjective, vague, and reliant on
individual judgment. In addition, because “productivity” is neither an
established, appropriate, or objective work standard, it is
susceptible to abuse, misuse, and erratic application;
-
Violates Article 34 protection against arbitrarily created and
selectively applied work measurement systems or work or time
standards;
-
May give the appearance of violating
ELM 542.33, Penalty For Refusal to Process Claim. 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 may be perceived as retaliatory and punitive
action against an employee who has an accepted OWCP claim.
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