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Light Duty v. Reasonable Accommodation Employee Advocate Exclusive Representation for Postal Employees Hello Postal Employee, Just a quick introduction to explain who I am and what I do, before I present my subject matter. I am a former Postal employee, who worked for the Postal Service for 11 years. Due to internal politics, and a difference of opinion of what the union’s duties were, I relinquished my union offices (though I remained an active union member) and instead of contract issues I confined my skills to representation in EEO, M.S.P.B., and other administrative arenas. What began as a hobby eventually developed into a full time position. Now that I’ve described a very brief history about me, I want to share a message about a subject that is important to union members and all other postal employees affected by the Collective Bargaining Agreement (CBA). Light Duty v. Reasonable Accommodation Most Postal employees are aware that if they are injured on-the-job, the Postal Service must provide a Limited Duty assignment to the injured employee, that is within the employee’s medical restrictions. The Postal Service is motivated to provide Limited Duty assignments to injured on-the-job employees, in order to avoid lost work-day injuries. When a Postal employee becomes permanently ill or injured off-the-job, what are their options? Postal unions have attempted to address these concerns by negotiating Light Duty provisions in Article 13 of the Collective Bargaining Agreement (CBA). Though it does provide for Light Duty assignments for both temporary and permanently ill or injured employees, my specific concerns regard the permanently ill or injured employee. Article 13, Section 2B(1) states in pertinent part, "(a)ny ill or injured full-time regular or (PTF) employee having a minimum of five years of postal service…can submit a voluntary request (emphasis added) for a permanent reassignment to light duty or other assignment…" The reason that the language specifies that the request is voluntary is because of other provisions in Article 13. If you voluntarily request Light Duty under Article 13 you agree that the assignment, the area of the assignment, the hours of duty, and the number of hours that you would be allowed to work, would be the discretion of the installation head. Additionally, if the employee is provided with a Light Duty assignment, the agency can require medical documentation as often as they deem, and at least once a year. Other contractual protections, such as a guarantee on the amount of hours worked, or assignments based on seniority, are waived when an employee submits a Light Duty request under Article 13. The EEOC has affirmed that an employee who voluntarily applies for a light duty assignment under Article 13 has "no guarantee of eight hour work days". See Irving v. Runyon, EEOC No. 01940501 (November 1st, 1994). Commissioners have recognized the potential of permanently ill or injured employees losing certain rights when they apply for Light Duty under Article 13. Referring to those provisions, the Commission has noted "that a policy like this may have to be modified in cases where an individual with a disability needs a reassignment". Tolar v. Henderson, EEOC No. 01965083 (16 December, 1998). Typically, when an employee has a permanent off-the-job illness or injury, the Postal Service will provide the employee with a Light Duty packet or form. Usually appearing as an instruction rather than an option, employees are expected to complete and sign the Light Duty Request form. Too frequently, once the employee submits a request for permanent Light Duty, they find that they are subjected to removal action for failure to perform the essential functions of their position. The key to avoiding this pitfall is first in determining whether the permanent illness or injury constitutes a "disability" as defined by the Rehabilitation Act and the Americans with Disabilities Act. The disability must affect "major life activities" to qualify under the definition. Additionally, the illness or injury cannot be of a temporary or transitory nature. Just last year the Supreme Court made additional rulings regarding persons with disabilities. They opined that if the disability can be overcome with corrective measures (say with medications or prosthetics), then the person can fail to meet the definition of a disabled individual. If the employee meets the definition of a disabled person, then the employee should submit a request for Reasonable Accommodation. This request is not only covered by the Rehab Act and the ADA, but agency manual EL-307 specifically addresses the procedure for making such a request. EL-307, Section 130 Light Duty, states in pertinent part, "…The reasonable accommodation guidelines described in this handbook do not apply to temporarily injured persons. Individuals returning to work with permanent physical limitations resulting from non work-related injury or illness should be afforded reasonable accommodation under these guidelines…" Reasonable Accommodation provides protections under the law which allow an employee to articulate what accommodation(s) they require, as well as ensure that the employee is entitled to other privileges and benefits of employment (such as being able to work a full eight hours). Whenever an employee makes a request for reasonable accommodation, it’s supposed to trigger an interactive process. The agency becomes obligated to discuss accommodations with the employee, and make specific searches for a position that the employee could then perform. When the Postal Service realized that an employee’s request for reasonable accommodation required the agency’s participation in the interactive process, they invented the "Reasonable Accommodation Committee" (RAC). As a subterfuge, the agency’s RAC is intended to meet the agency’s obligation to participate in that interactive process. There have been more than a few occasions when a supervisor or manager will advise an employee, who has made a request for reasonable accommodation, that they will appear before the committee to represent the employee’s interests. Can you really believe that a supervisor, who may have refused to provide the requested accommodation, is really going to represent the employee’s best interests at a RAC meeting? Most RAC’s are staffed with managers, Human Resource Specialists, Safety Specialists, medical unit personnel, and the occasional EEO Counselor and/or union representative. Generally, RAC committee members have little knowledge, or understanding of the requirements of the Rehab Act and the ADA. Even EEO Counselors have demonstrated little understanding of these laws. It is important for permanently ill or injured employees, and for union leaders and members to know the differences between Light Duty and Reasonable Accommodation. As currently stated, Article 13 can become an unsuspecting disaster for disabled and/or permanently ill or injured employees. Union members and leaders should discuss this issue at the local level to determine whether language of Article 13 should be supplemented to incorporate the same legal theory, and to ensure the proper protections, of employees under the Rehabilitation Act and the ADA. If you have any questions or comments regarding this subject, or any other EEO or M.S.P.B. issue, please contact: Mr. J.R. Pritchett, Employee Advocate UTAH LEGAL ADVOCATES are not attorneys. The above article has been prepared for educational and informational purposes only. It does not constitute legal advice or legal opinions. Readers should not act upon this information without seeking professional counsel. The opinions expressed in this article are those of the author, and not those of the Internet host. |