Update: EEO Class Action For Postal Employees Placed Under National Reassessment Process
A class action complaint for injured on duty postal employees was certified by an EEOC Administrative Judge (AJ) on May 30,2008.
In the case of (Read article from February 17, 2009) Sandra McConnell, et al. v. United States Postal Service an AJ decision certified the following class:
All permanent rehabilitation employees and limited duty employees at the U.S. Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006 to present, allegedly in violation of the Rehabilitation Act of 1973. The AJ certification decision recited evidence that the goal of NRP was to assign work to
employees who had an approved compensable injury as determined by the Department of Labor.
According to the decision, Phase 1 of NRP consisted largely of reviewing the files and medical records of all these employees; where needed requesting updated medical documentation from the employee; and verifying that current work actually being performed matched the current job offer. According to the decision, Phase 2 consisted largely of canvassing facilities to identify work necessary for operations and functions, attempting to match the employee with the necessary work, and if none is found, notifying the employee that no work was available.
Class members argued one or more of the following complaints:
1. NRP is a systemic attempt to abolish reasonable accommodations agency wide.
2. The agency’s alleged facially non-discriminatory policy is being applied in a discriminatory manner.
3. The process constitutes denial(s) of reasonable accommodation.
4. The process constitutes discrimination based on disability (physical/mental).
5. The process constitutes unlawful harassment and hostile work environment based on disability (physical/mental).
6. The agency unlawfully modified or terminated each person’s approved disability accommodations without cause.
7. The agency made its reassignment decisions improperly by, inter alia, failing to engage in the interactive process.
8. The agency applied the program discriminatorily both with regard to each individual and how the process was applied.
9. The agency’s actions are retaliatory for the individual’s protected conduct, in reporting injuries, filing worker’s compensation, and/or prior EEO activity.
10. The agency’s conduct violated its procedures and OWCP’s regulations and blatant failure to follow the agency’s own regulations is presumed to be motivated by retaliation and/or discrimination.
The Postal Service filed an appeal from the certification decision.
Recently EEOC agreed with the AJ’s determination that the class should be defined as all permanent rehabilitation employees and limited duty employees at the agency who have been subjected to the NRP since 2006. Therefore, the EEOC reversed the Postal Service’s order rejecting the class and ordered them to notify potential class members.
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Postal Mail Handlers Union Signs Settlement On National Reassessment Program
The National Office of the NPMHU recently signed a settlement with USPS management concerning the National Reassessment Program (NRP), which is being used by the Postal Service to re-evaluate all limited duty and rehabilitation positions held by mail handlers and other postal employees who have been injured on the job.
Throughout the negotiations, the NPMHU has held the position that the Postal Service’s use of the term “necessary work” in the NRP unduly and unreasonably restricts the types of duties and assignments that must be made available to mail handlers and other employees injured on the job. We are pleased to report that the settlement reached by the National parties deals directly with this issue. In particular, the settlement has three major components:
First, the settlement addresses the NPMHU’s contention that the Postal Service has been using the NRP to implement a new “necessary work” standard for the creation and continuation of limited duty and rehabilitation assignments. The parties have agreed that “[t]he NRP has not redefined or changed the Postal Service’s obligation to provide limited duty or rehabilitation assignments for injured employees.” The parties also have agreed that ELM Section 546 “has not
been amended and remains applicable to all pending grievances.” It is important
to note that ELM Section 546.142 refers repeatedly to “adequate work” and “adequate work available” as the governing standard.
Second, the settlement deals with the Union’s contention that the Postal Service was using the NRP to develop new criteria for assigning limited duty.Again, the parties agreed that “[t]he Postal Service has not developed new criteria for assigning limited duty,” and that “[i]njured employees will continue to be assigned limited duty, in accordance with the requirements of ELM 546 and 5 C.F.R, Part 353.”
Third, the settlement specifically addresses the potential impact of the NRP on employees assigned light duty under Article 13 of the National Agreement. On this issue, the parties agreed that “[e]mployees on existing non-workers’ compensation light duty assignments made pursuant to Article 13 . . . will not normally be displaced solely to make new limited duty or rehabilitation assignments unless required by law or regulation.”
The parties further agreed that all grievances concerning the NRP, which have been held pending the outcome of this National-level dispute, will be processed through the appropriate grievance and arbitration procedure. If you have a question about NRP implementation, you should contact your Local Union representatives.
GAO: USPS National Reassessment Program For Injured Employees Needs Improvement
Why GAO Did This Study
The Program for Reassessing Work Provided to Injured Employees Is Under Way, but Actions Are Needed to Improve Program Management
Highlights of GAO-10-78, a report to congressional requesters
Between 50,000 and 60,000 United States Postal Service (Service) employees, or 7 to 8 percent of the Service’s workforce, occupied a modified work assignment during fiscal year 2008. The Service must provide these assignments to employees with workplace injuries if work is available to perform within their medical restrictions. Historically, the Service has returned employees to work as soon as possible, partly to reduce its costs for workers’ compensation. In 2006, the Service initiated a program, the National Reassessment Process, to ensure that modified work assignments are medically suitable and necessary to carry out the Service’s mission. This requested report addresses (1) the goal of the program, (2) how it is being implemented, and (3) the program’s status and outcomes. To perform its work, GAO analyzed data and documentation, visited four districts selected to illustrate a range of conditions, and interviewed Service officials.
What GAO Recommends
GAO recommends that the Service establish program completion timelines, track and measure outcomes, and disclose limitations of its reported cost savings. The Service agreed with GAO’s third recommendation and disagreed with the other two. While GAO modified one recommendation in response to the Service’s comments, GAO retained all three to encourage program completion, accountability, and transparency.
The goal of the National Reassessment Process is to ensure that all employees in modified work assignments are performing work that is both suitable to their medical restrictions and necessary to the Service’s mission. Among other things, the program aims to eliminate what Service officials call “make–work” assignments which, over time, occurred when factors such as increasing automation and declining mail volumes reduced the amount of manual, sedentary, and useful work available for these employees to perform. The number of employees reassessed under the program is not readily available nationwide because the Service does not aggregate district data. However, on September 30, 2008, there were 31,044 employees in modified work assignments, all of whom may have been reassessed under the program.
What GAO Found
The program is being implemented in three phases in the Service’s 74 districts. In Phase 1, the Service ensures that all employee medical records are current, and categorizes the employees based on their medical status. In Phases 2 and 3, the Service attempts to find each employee medically suitable and necessary work. If successful, the Service provides these employees with modified work assignments. However, when suitable work is not available, employees become eligible for wage loss compensation (workers’ compensation). Specifically, because employees in Phase 2 have reached their maximum medical improvement, they are not expected to return to work for the Service and, thus, may receive workers’ compensation indefinitely, whereas Phase 3 employees are eligible for workers’ compensation for only the number of hours they cannot work for the Service. Initially, the Service implemented each phase of the program sequentially; however, in July 2009, it began allowing some districts to conduct Phases 2 and 3 concurrently to expedite the program’s completion. The Service has not established milestones for completing the program, but, according to Service officials, they expect the program to be fully implemented by September 30, 2010.
After 3 years, none of the Service’s districts had completely implemented the program, and implementation in most is far from complete. Available data on employee outcomes are limited and preliminary because implementation is ongoing, and the Service does not track employees who receive medically suitable and necessary work—the goal of the program. The Service achieves program cost savings when, for example, employees return to full duty, retire, resign, or perform modified work assignments. However, when suitable work is not available, some employee outcomes could increase the Service’s short- and long-term costs for workers’ compensation. For the year ending June 30, 2009, workers’ compensation costs totaled about $1.1 billion and, in 2008, the Service estimated that its future liability for these costs totaled about $8 billion. The Service reported to the Congress that the program saved $146 million in fiscal year 2008. However, the Service did not disclose that these reported savings reflect neither the Service’s total gross savings nor its net savings, nor any other limitations in its cost estimation methodology.
see full report: http://www.gao.gov/new.items/d1078.pdf
The Postal Service's National Reassessment Process-Limited Duty
The following are excerpts from a letter sent by Susan Carney, APWU Director Human Relations Department to the field:
On May 29, 2009, the Postal Service concluded its National Reassessment Process Limited Duty pilot program. APWU has been notified that this program is being implemented nationwide effective July 13, 2009, with “work status meetings” beginning no sooner than July 27th. You should be aware that the Limited Duty NRP will target limited duty employees as well as those rehab employees who have not yet been subjected ot the original NRP Phase 2, which is now being referred to as the MMI NRP. This new NRP is not intended to replace the MMI NRP. They will exist simultaneously, therefore as explained by the Postal Service, some rehab employees will be subjected to both versions of the program.
It is our belief that this new program has been established to accelerate the NRP, which to this point has proven unfruitful in reducing the Service’s chargeback liabilities when considering the years of resources and finances that the Service has invested in it. We also suspect a dismal response to the USPS’ solicitation , offering early outs is another driving force behind the program.
Nonetheless, the USPS insists that the program merely applies existing NRP processes to the targeted employees and that “available work” decisions will be consistent with current, relevant regulations. However, our review of the new Limited Duty NRP protocol guidelines not only exposed distinct and fundamental differences between the previous MMI program and the new Limited Duty program, but also revealed the continuation of the violations which we previously grieved at the national
Meetings with the USPS
We were advised that districts will start implementation on a staggered basis as determined by each USPS area. The Service projected that there will only be a one-two week period between commencement dates. The USPS further advised that all local and stated union leadership will receive timely briefings, and that employees on the workroom floor will receive a stand up talk regarding the new limited duty process. Additionally, the USPS reiterated that union representation will be provided when bargaining unit employees make such a request.
Editorial: MSPB Finds Limited Duty Offer Was Proper
Heidel vs USPS, 2009 MSPB 152, August 5, 2009 by Don Cheney
The Merit Systems Protection Board found that the appellant was not entitled to the limited duty position he wanted. The Postal Service needed only to assign him to a position for which he is qualified. The USPS restructured the appellant’s current position by instructing him not to perform the duties normally associated with the position that exceed his medical restrictions. Thus, in the Board’s view, the appellant was assigned duties that were within his medical restrictions and, therefore, a position for which he is qualified.
The Board was not persuaded by the appellant’s contention that he is not able to determine whether a task violates his restrictions because he is not a medical expert. In the Board’s view, the appellant’s medical restrictions were such that they do not require medical expertise to understand. In fact, because the restrictions were not specific and definite but rather, call for the appellant to avoid certain acts “on a frequent basis,” and to “decrease” other activities, there was no one better able than the appellant to understand whether a particular task on a particular day is within his restrictions.
Comment: OWCP and MSPB mainly care if the limited duty position being offered is within the person’s medical restrictions. The right to challenge a tour change comes from ELM 546 and must be pursued in the grievance procedure as appropriate. If this person is not careful, he could be facing removal for inability to perform the essential functions of his position (an administrative action rather than a disciplinary one). Has he not heard of the “National Reassessment Process?”
Editorial: Postal Workers OWCP Indictments
Filed under: Injured On Duty, legal cases, owcp, postal employees
The OIG press release about the OWCP indictments stated, “The United States Postal Service has a policy of returning disabled employees to a limited duty position or part-time employment at the earliest opportunity during their recovery from their work-related injury.” What happened to the National Reassessment Process? Doesn’t that do the opposite?
“Pursuant to OWCP procedures and policy, disabled employees receiving FECA benefits are required to disclose salaried, commissioned, and self-employment activities as well as volunteer activities when claiming entitlement to worker’s compensation benefits.” That’s right–even volunteer activities like Sunday School teacher, Girl Scouts or APWU state vice president have to be disclosed on the form or you can be NAILED. If a person is not willing to stay home and do nothing outside their restrictions, then they would be best off taking a disability retirement.
Everyone on OWCP is scrutinized these days. Tactics include installing a hidden video camera on a telephone pole in front of the home. Attached are two photos of one taken by a letter carrier. He witnessed it being installed, and curious, asked the contractor about it, who told him! The small rectangle on the side of the box is a one-way glass. The letter carrier complained to his steward, who complained to management, and the box was removed a few days later. The video signal is sent over the electrical wires to a distant monitoring station, giving OIG a live feed to a DVR. The City of Federal Way, WA installed a similar video surveillance setup all over town: http://www.q13fox.com/news/kcpq-052709-surveillancecameras2,0,3778257.story
Updated: Video Camera On pole (PDF)
Don
NALC Branch VP: Limited Duty Carriers Suffer The Ultimate Harm
Here is more info about USPS To Expand National Reassessment Process With New Pilot Program??] that PostalReporter posted back in March of this year:
LIMITED DUTY CARRIERS SUFFER THE ULTIMATE HARM
By: Ray Hill, Executive Vice-President
NATIONAL ASSOCIATION OF LETTER CARRIERS AFL-CIO Branch 2902 (Chatsworth, CA)
I’m sure you are all at least somewhat familiar with the story of Chesley “Sully” Sullenberger III, the pilot that successfully landed US Airways Flight 1549 in the Hudson River on January 15th, saving his crew and all 155 passengers on board in the process. Ever since I heard about his heroic Hudson River landing, when the word pilot comes to my mind, I immediately think of Mr. Sullenberger. On the other hand, when USPS Management thinks about the word pilot, sadly, it isn’t Mr. Sully Sullenberger that pops into their minds.
Speaking of the word pilot, the USPS has just launched their brand, spanking new “Limited Duty Pilot Program”.No, when USPS Management thinks of the word pilot, they don’t see Sully Sullenberger III; they see visions of their injured carriers being kicked in the a** as they shove them out the door.
Thanks to this particular pilot, many of the Sierra-Coastal District’s already injured Letter Carriers are now suffering from new injuries that are being inflicted upon them by USPS Management. The good news is that this disastrous “Pilot Program” is only being tested in 4 USPS Districts in the entire country. The bad news is that the Sierra-Coastal District is one of them. The worst news is that USPS Management will probably embrace the havoc wreaked by the Pilot Program and eventually implement it across the nation.
Apparently the National Reassessment Process (NRP) was not proceeding fast enough for their liking, so the USPS came up with this Pilot Program to hasten the harm to those Letter Carriers that have sustained on-the-job injuries and have been working modified assignments for several years.
In Branch 2902 the Pilot Program crash-landed in the Reseda and Woodland Hills Post Offices on Friday, April 3, 2009 as Management Teams went into those offices and met with the limited duty carriers.
On Monday, April 6, 2009 the Pilot Program crashed into the North Hollywood and Sylmar offices. Throughout the weeks of April 6th and April 13th, the Management Teams have continued the meetings in Post Offices throughout the Branch.
Most of the limited duty carriers that I have spoken to say that they requested Union representation in their meeting with Management and that their requests were denied.Branch 2902 will be filing grievances in any and all offices where carriers requested Union representation and their requests were denied.
Some of our injured carriers were offered no work at all and sent home with a Form CA-7, while other carriers were offered varying amounts of work totaling less than 8 hours per day.
Regarding the offers of less than 8 hour’s work per day that were given to the carriers, it is really a mixed bag. For example, one carrier was offered 1 hour of work per day, another carrier was offered 2 hours of work per day while yet another carrier was offered 6 hours of work per day.
Injured carriers that have been carrying routes have, for the most part, been offered 8 hours of work per day.
In my correct opinion, it is really a slap in the face to offer someone 1, 2 or 3 hours of work per day. I take that back. It is more of a kick in the ass than a slap in the face.
Some of the injured carriers that were given these insulting job offers commute from long distances (i.e. Palmdale, Lancaster, Rancho Cucamonga, Inglewood, etc.) and their commutes will take them longer than they will be working. That, Brothers and Sisters, is just plain, unadulterated, Grade-A B.S.
We are advising all the limited duty carriers being adversely affected by the pilot program to contact the steward in their office to file a grievance immediately when they are given offers of anything less than 8 hours of work within their medical restrictions per day.
We are also advising these carriers to provide their stewards with a detailed statement explaining what work they have been doing since they suffered their injuries.
The work that the limited duty carriers have been doing all these years did not magically disappear when Management kicked them out the door. Someone has to be doing that work. The question is: Who is now doing the work that our injured carriers have been doing for years?
I carried mail in North Hollywood, where Management has a long history of doing craft work when they think they can get away with it. Supervisors have been known to case routes, pull down routes, deliver mail, deliver Express Mail, spread mail, pull the hot case for carriers, etc. When we find out about the violations, we file grievances and are successful getting letter carriers paid for craft work that was performed by Management.
I find it criminal that Management has the gall to kick injured carriers out the door because they allegedly have no work for them and then sneak around doing the work that the injured carrier used to do. Help us with this, Brothers and Sisters! Let us know if and when you observe any violations of Management doing the craft work that our injured carriers used to do and should still be doing! Remember, “There but for the grace of God walketh I”.
see full article (PDf) | Full Bulletin from NALC 2902
USPS To Expand National Reassessment Process With New Pilot Program??
From PostalReporter.com reader:
“The Postal Service has announced it intends to expand the National Reassessment Process by implementing a Pilot Program for Limited Duty Modified Assignments. That should mean those who have not met their maximum medical improvement. It will be a “Pilot” program in 4 districts nationwide. USPS has set up a meeting with National on April 22 to discuss their intentions, which we all know is to reduce the workforce any way they can. I have been a rehab for approx 18 years. I have a full work day with more than enough to keep busy. USPS has had a stand up in the Santa Ana district saying they intend to start it ASAP (before the national meeting in April). But they intend to use this “Pilot” program to circumvent the established process of interviewing employees. They are saying that anyone not performing “productive and necessary work based on operational necessity” will be targeted. My manager said that means that any rehab, not only the limited duty assignments that USPS nationally has said would be included in pilot, will only be working an hour or two a day, then will be sent home. This is an obvious violation of the established NPR program. Has anyone else out there heard of this railroading policy happening in their area?”
Arbitrator Rescinds APWU, USPS 2006 MOU Regarding Limited Duty Postal Employees
Arbitrator Das, ruling in an NALC grievance in which the APWU intervened, ordered the Postal Service to rescind changes agreed to by the APWU and the USPS in a 2006 MOU “Re: Limited Duty and Rehabilitation Assignments Within APWU Crafts Involving Workers from Other Crafts.” The MOU provided that the reassignment or reemployment of an employee injured on duty was required to be “accomplished through Article 13 of the National Agreement applicable to the craft to which the employee is being reassigned.” The NALC objected that the change would adversely affect language in Article 13 of the NALC agreement, and that the Postal Service could not make these changes without negotiating with the NALC.
Click here for a copy of the arbitrator’s decision http://www.apwu.org/dept/ind-rel/awd-set/Q01N4QC07229522ELM546Revision.pdf
EEOC Class Action Pending For Postal Employees Placed Under USPS National Reassessment Process
note: I found this little nugget stuck in the middle of another EEOC case.
A class action complaint for injured on duty postal employees was certified by an EEOC Administrative Judge (AJ) on May 30,2008.
In the case of Sandra McConnell, et al. v. United States Postal Service an AJ decision certified the following class:
All permanent rehabilitation employees and limited duty employees at the U.S. Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006 to present, allegedly in violation of the Rehabilitation Act of 1973.
The AJ certification decision recited evidence that the goal of NRP was to assign work to employees who had an approved compensable injury as determined by the Department of Labor. According to the decision, Phase 1 of NRP consisted largely of reviewing the files and medical records of all these employees; where needed requesting updated medical documentation from the employee; and verifying that current work actually being performed matched the current job offer. According to the decision, Phase 2 consisted largely of canvassing facilities to identify work necessary for operations and functions, attempting to match the employee with the necessary work, and if none is found, notifying the employee that no work was available.
The Postal Service filed an appeal from the certification decision, which is pending as of February 13, 2009.
More details will be posted as they become available.
List of USPS Districts Currently Under Phase 2 of the National Reassessment Process