U.S. Postal Service ‘Outplacement Program’ Goes Nationwide (May 2005)

The Postal Service aggressively monitors limited-duty and rehabilitation assignments, and in May 2005 notified the APWU that the USPS would begin a reassessment of rehabilitation jobs and limited duty assignments. The “reassessments” will be implemented nationwide, by District. San Diego has become the initial site, and is set to begin late this summer. A pilot program was initiated in April 2004 in the Long Island (NY) District.

The Postal Service contends that the program is necessary because there are a declining number of jobs available for injured employees who have substantial medical limitations. If there is no medically-suitable job available for such an employee, the Postal Service will refer the employee to OWCP for placement in OWCP’s vocational rehabilitation program and eventual re-employment in the private sector.

The Postal Service has stated that the program does not establish new policy, nor does it apply any new rules or regulations. The USPS has made a commitment that any action taken as a result of the outplacement protocols will be in compliance with the Employee and Labor Relations Manual (ELM), the Federal Employees’ Compensation Act (FECA), the Code of Federal Regulations (CFR), the Rehabilitation Act, and all other applicable rules, regulations, or statutes.

Every limited-duty and rehabilitation assignment should be made on a case-by-case basis after an individual assessment. Decisions regarding the availability of medically-suitable employment must be based on the specific fact circumstances unique to each employee. Blanket or wholesale reassignments violate federal law and postal regulations.

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.