JCAM – Article 13 Assignment of III or Injured Regular Workforce Employees

The provisions of Article 13 govern voluntary requests for light duty work by employees who are temporarily or permanently incapable of performing their normal duties as a result of illness or injury.

The term “light duty” should not be confused with the term “limited duty.” The term limited duty is not used in the National Agreement. Rather, the term limited duty was established by 5 Code of Federal Regulations, Part 353—the O.P.M. regulation implementing 5. U.S.C. 8151(b), that portion of the Federal Employees’ Compensation Act (FECA) pertaining to the resumption of employment following job-related injury or illness. USPS procedures regarding limited duty are found in Part 540 of the Employee & Labor Relations Manual (ELM). Limited duty may be provided for an employee who is temporarily or permanently incapable of performing his/her normal duties as a result of a job-related compensable illness or injury. National Arbitrator Mittenthal held in H8N-5B-C 22251, November 14, 1983 (C-03855), that Article 13, Section 4.H applies to both light and limited duty situations (see below).

An employee who has suffered a compensable illness or injury may seek permanent light duty work through the procedures provided in Article 13. However, in most circumstances such employees will find the procedures and regulations provided in ELM Chapter 540 better suited to their needs. The limited duty provisions contained in ELM Section 540 will be discussed at the end of this article.

13.1.A Section 1. Introduction

A. Part-time regular schedule employees assigned in the craft unit shall be considered to be in a separate category. All provisions of this Article apply to part-time regular schedule employees within their own category.

Part-time regular schedule employees are in a category separate and apart from full- and part-time flexible employees.

13.1.B B. The U.S. Postal Service and the Union recognizing their

responsibility to aid and assist deserving full-time regular or part-time flexible employees who through illness or injury are unable to perform their regularly assigned duties, agree to the following provisions and conditions for reassignment to temporary or permanent light duty or other assignments. It will be the responsibility of each installation head to implement the provisions of this Agreement within the installation, after local negotiations.

As discussed below, Article 30.B.15, 16 and 17 allow for the identification of light duty assignments during local implementation. However, the fact that no agreement has been reached does not prevent an eligible employee from requesting available light duty.

13.2.A Section 2. Employee’s Request for Reassignment

A. Temporary Reassignment

Any full-time regular or part-time flexible employee recuperating from a serious illness or injury and temporarily unable to perform the assigned duties may voluntarily submit a written request to the installation head for temporary assignment to a light duty or other assignment. The request shall be supported by a medical statement from a licensed physician or by a written statement from a licensed chiropractor stating, when possible, the anticipated duration of the convalescence period. Such employee agrees to submit to a further examination by a physician designated by the installation head, if that official so requests.

The following requirements apply to an employee seeking temporary reassignment to light duty work.

• Any full-time regular or part-time flexible employee may request temporary light duty, regardless of length of service.

• The request must be submitted in writing.

• The request must be supported by a medical statement from a licensed physician or by a written statement from a licensed chiropractor.

• The employee bears any cost connected with the statement required under this section.

• The employee must agree to submit to a further examination by a physician designated by the installation head, if requested.

• The Postal Service will be responsible for any costs when it requests a second medical examination.

• The employee may specifically seek light duty or may seek “other assignment” within his/her medical limitations

13.2.B.1 B. Permanent Reassignment

1. Any ill or injured full-time regular or part-time flexible employee having a minimum of five years of postal service, or any fulltime regular or part-time flexible employee who sustained injury on duty, regardless of years of service, while performing the assigned duties can submit a voluntary request for permanent reassignment to light duty or other assignment to the installation head if the employee is permanently unable to perform all or part

of the assigned duties. The request shall be accompanied by a medical certificate from a physician designated by the installation head giving full evidence of the physical condition of the employee, the need for reassignment, and the ability of the employee to perform other duties. A certificate from the employee’s personal physician will not be acceptable.

The following requirements apply to an employee seeking permanent reassignment to light duty work.

• An employee must have five years of postal service to be eligible to apply for permanent reassignment due to a non-job related injury or illness.

• Any full- or part-time employee, regardless of length of postal service, may choose to request permanent reassignment duty if unable to perform all or part of his/her assigned duties due to job related illness or injury instead of using the procedures in ELM Section 540.

• The request must be submitted in writing.

• The request must be accompanied by a medical statement from a physician designated by the installation head. Unlike the case in requests for temporary reassignment, a statement from the employee’s own physician is not acceptable

• The Postal Service will be responsible for the costs of a medical examination required and scheduled by the Postal Service.

• The employee may specifically seek light duty or may seek “other assignment” within his/her medical limitations

13.2.B.2 2. The following procedures are the exclusive procedures for

resolving a disagreement between the employee’s physician and the physician designated by the USPS concerning the medical condition of an employee who has requested a permanent light duty assignment. These procedures shall not apply to cases where the employee’s medical condition arose out of an occupational illness or injury. On request of the Union, a third physician will be selected from a list of five Board Certified Specialists in the medical field for the condition in question, the list to be supplied by the local Medical Society. The physician will be selected by the alternate striking of names from the list by the Union and the Employer. The Employer will supply the selected physician with all relevant facts including job description and occupational physical requirements. The decision of the third physician will be final as to the employee’s medical condition and occupational limitations, if any. Any other issues relating to the employee’s entitlement to a light duty assignment shall be resolved through the grievance-arbitration procedure. The costs of the services of the third physician shall be shared by the Union and the Employer.

The procedures in Article 13.2.B.2 for resolving a disagreement between physicians do not apply to situations involving on-the-job illness or injury. Only OWCP has the authority to resolve disputes concerning the medical condition of employees who have suffered a compensable injury or illness (see Limited Duty, below).

On request of the union, a third doctor will be selected from a list supplied, in each separate case, by the local Medical Society of certified specialists for the condition in question.

13.2.C

C. Installation heads shall show the greatest consideration for fulltime regular or part-time flexible employees requiring light duty or other assignments, giving each request careful attention, and reassign such employees to the extent possible in the employee’s office. When a request is refused, the installation head shall notify the concerned employee in writing, stating the reasons for the inability to reassign the employee.

Article 13.2.C requires that installation heads make a bona fide effort to identify light duty work. It further requires management to give the matter “the greatest consideration” and “careful attention”. If management does not provide the requested light duty work, it has an obligation to explain in writing why light duty work is unavailable. Disputes concerning the failure to provide light duty work may be addressed through the grievance arbitration procedure.

Section 3. Local Implementation

Due to varied size installations and conditions within installations, the following important items having a direct bearing on these reassignment procedures (establishment of light duty assignments) should be determined by local negotiations.

A. Through local negotiations, each office will establish the assignments that are to be considered light duty within each craft represented in the office. These negotiations should explore ways and means to make adjustments in normal assignments, to convert them to light duty assignments without seriously affecting the production of the assignment.

B. Light duty assignments may be established from part-time hours, to consist of 8 hours or less in a service day and 40 hours or less in a service week. The establishment of such assignment does not guarantee any hours to a part-time flexible employee.

C. Number of Light Duty Assignments. The number of assignments within each craft that may be reserved for temporary or permanent light duty assignments, consistent with good business practices, shall be determined by past experience as to the number of reassignments that can be expected during each year, and the method used in reserving these assignments to

13.3.A

13.3.C

insure that no assigned full-time regular employee will be adversely affected, will be defined through local negotiations. The light duty employee’s tour hours, work location and basic work week shall be those of the light duty assignment and the needs of the service, whether or not the same as for the employee’s previous duty assignment.

Local Implementation. Article 13.3, together with Article 30.B.15, 16 and 17 provide that the parties may discuss the following during the local implementation period.

• The number of light duty assignments within each craft or occupational group to be reserved for temporary or permanent light duty assignment (Article 30.B.1).

• The method to be used in reserving light duty assignments so that no regularly assigned member of the regular work force will be adversely affected (Article 30.B.16).

• The identification of assignments that are to be considered light duty. within each craft represented in the office. (Article 30.B.17).

Article 13.3 provides that changes may be made in an employee’s regular schedule and work location in order to accommodate a light duty request (See Step 4, NC-S 5127, April 15, 1977, M-00734). National Arbitrator Mittenthal held in H1C-4E-C 35028, June 12, 1987 (C-00935) that full-time employees on light duty are not guaranteed eight hours a day or forty hours a week of light duty work. They may be sent home before the end of their tour due to lack of work.

13.4.A Section 4. General Policy Procedures

A. Every effort shall be made to reassign the concerned employee within the employee’s present craft or occupational group, even if such assignment reduces the number of hours of work for the supplemental work force. After all efforts are exhausted in this area, consideration will be given to reassignment to another craft or occupational group within the same installation.

When possible, letter carriers should be provided light duty work within the letter carrier craft. Article 13.4.A obligates management to reduce casual hours, if necessary, in order to provide light duty work in the letter carrier craft for career letter carriers.

13.4.B B. The full-time regular or part-time flexible employee must be

able to meet the qualifications of the position to which the employee is reassigned on a permanent basis. On a temporary reassignment, qualifications can be modified provided excessive hours are not used in the operation.

13.4.c C. The reassignment of a full-time regular or part-time flexible

employee to a temporary or permanent light duty or other

assignment shall not be made to the detriment of any fulltime regular on a scheduled assignment or give a reassigned part-time flexible preference over other part-time flexible employees.

D. The reassignment of a full-time regular or part-time flexible employee under the provisions of this Article to an agreed-upon light duty temporary or permanent or other assignment within the office, such as type of assignment, area of assignment, hours of duty, etc., will be the decision of the installation head who will be guided by the examining physician’s report, employee’s ability to reach the place of employment and ability to perform the duties involved.

E. An additional full-time regular position can be authorized within the craft or occupational group to which the employee is being reassigned, if the additional position can be established out of the part-time hours being used in that operation without increasing the overall hour usage. If this cannot be accomplished, then consideration will be given to reassignment to an existing vacancy.

F. The installation head shall review each light duty reassignment at least once each year, or at any time the installation head has reason to believe the incumbent is able to perform satisfactorily in other than the light duty assignment the employee occupies. This review is to determine the need for continuation of the employee in the light duty assignment. Such employee may be requested to submit to a medical review by a physician designated by the installation head if the installation head believes such examination to be necessary.

G. The following procedures are the exclusive procedures for resolving a disagreement between the employee’s physician and the physician designated by the USPS concerning the medical condition of an employee who is on a light duty assignment. These procedures shall not apply to cases where the employee’s medical condition arose out of an occupational illness or injury. On request of the Union, a third physician will be selected from a list of five Board Certified Specialists in the medical field for the condition in question, the list to be supplied by the local Medical Society. The physician will be selected by the alternate striking of names from the list by the Union and the Employer. The Employer will supply the selected physician with all relevant facts including job description and occupational physical requirements. The decision of the third physician will be final as to the employee’s medical condition and occupational limitations, if any. Any other issues relating to the employee’s entitlement to a light duty assignment shall be resolved through the grievance-arbitration procedure. The costs of the services of the third physician shall be shared by the Union and the Employer.

13.4.D

13.4.E

13.4.F

13.4.G

The dispute resolution procedure in this section does not apply to situations involving job-related illness or injury. Only OWCP has the

authority to resolve disputes concerning the medical condition of employees who have suffered a compensable injury or illness (see Limited Duty, below).

The procedure in this section is the same as that in Article 13.2.B.2. It provides that on request of the union, a third doctor will be selected from a list supplied, in each separate case, by the local Medical Society of certified specialists for the condition in question.

13.4.H H. When a full-time regular employee in a temporary light duty

assignment is declared recovered on medical review, the employee shall be returned to the employee’s former duty assignment, if it has not been discontinued. If such former regular assignment has been discontinued, the employee becomes an unassigned full-time regular employee.

National Arbitrator Mittenthal held in H8N-5B-C 22251, November 14, 1983 (C-03855), that this provision also applies to employees who have been assigned temporary limited duty work in other crafts under the provisions of the Employee Labor Relations Manual (ELM) 546.

13.4.I I. If a full-time regular employee is reassigned in another craft

for permanent light duty and later is declared recovered, on medical review, the employee shall be returned to the first available full-time regular vacancy in complement in the employee’s former craft. Pending return to such former craft, the employee shall be an unassigned full-time regular employee. The employee’s seniority shall be restored to include service in the light duty assignment.

When the qualifying conditions in this provision are met, return to the former craft is mandatory. The seniority rule stated in this section is applicable to the letter carrier craft and is an exception to the general rule in Article 41.2.G. Article 13.4.I also applies to employees who have been permanently assigned limited duty work in other crafts under the provisions of ELM 546. See Arbitrator Mittenthal, H8N-5B-C 22251, November 14, 1983, (C-03855).

13.4.j

13.4.L

J. When a full-time regular employee who has been awarded a permanent light duty assignment within the employee’s own craft is declared recovered, on medical review, the employee shall become an unassigned full-time regular employee.

K. When a part-time flexible on temporary light duty is declared recovered, the employee’s detail to light duty shall be terminated.

L. When a part-time flexible who has been reassigned in another craft on permanent light duty is declared recovered, such assignment to light duty shall be terminated. Section 4.I, above, does not apply even though the employee has advanced to full-time regular while on light duty.

Section 5. Filling Vacancies Due to Reassignment of an Employee to Another Craft

When it is necessary to permanently reassign an ill or injured full-time regular or part-time flexible employee who is unable to perform the regularly assigned duties, from one craft to another craft within the office, the following procedures will be followed:

A. When the reassigned employee is a full-time regular employee, the resulting full-time regular vacancy in the complement, not necessarily in the particular duty assignment of the losing craft from which the employee is being reassigned, shall be posted to give the senior of the full-time regular employees in the gaining craft the opportunity to be reassigned to the vacancy, if desired.

The seniority of full-time employees reassigned to another craft under the provisions of this section is determined by Article 13.6.A below.

National Arbitrator Bloch held in H1C-4B-C 7361, October 5, 1983 (C-00383) that where a clerk obtained a letter carrier position as a result of a letter carrier being assigned light duty work in the clerk craft under this provision, it was improper to return the former clerk to the clerk craft after the letter carrier successfully grieved the light duty assignment that had been accepted under duress.

13.5.B B. If no full-time regular employee accepts the opportunity to be

assigned to the vacancy in the complement, not necessarily in the particular duty assignment in the other craft, the senior of the part-time flexibles on the opposite roll who wishes to accept the vacancy shall be assigned to the full-time regular vacancy in the complement of the craft of the reassigned employee.

When no full-time regulars in the gaining craft desire to take the vacancy in the losing craft, the vacancy is then offered to part-time flexibles in the gaining craft by seniority. Part-time flexibles so reassigned become full-time regulars upon reassignment. However, under the provisions of Article 13.6.B, below, they are required to begin a new period of seniority.

13.5.C C. When the reassigned employee is a part-time flexible, the

resulting vacancy in the losing craft shall be posted to give the senior of the full-time regular or part-time flexible employees in the gaining craft the opportunity to be assigned to the part-time flexible vacancy, if desired, to begin a new period of seniority at the foot of the part-time flexible roll.

Full-time regulars from another craft who bid into the letter carrier craft under this provision must begin a new period of seniority and become part-time flexibles.

13.5.D D. The rule in A and B, above, applies when a full-time regular

employee on permanent light duty is declared recovered and is returned to the employee’s former craft, to give the senior of the full-time regular or part-time flexible employees in the gaining craft the opportunity, if desired, to be assigned in the resulting full-time regular vacancy in the complement, not necessarily in the particular duty assignment of the losing craft.

13.6 Section 6. Seniority of an Employee Assigned to Another Craft

A. Except as provided for in Section 4.I, above, a full-time regular employee assigned to another craft or occupational group in the same or lower level in the same installation shall take the seniority for preferred tours and assignments, whichever is the lesser of (a) one day junior to the junior full-time regular employee in the craft or occupational group, (b) retain the seniority the employee had in the employee’s former craft.

B. A part-time flexible employee who is permanently assigned to a full-time regular or part-time flexible assignment in another craft, under the provisions of this Article, shall begin a new period of seniority. If assigned as a part-time flexible, it shall be at the foot of the part-time flexible roll.

The seniority of full-time regulars assigned to other crafts as a result of Article 13 is the lesser of the employee’s own seniority or one day junior to the junior full-time employee in the craft to which assigned. This is an exception to Article 41.2.G.2.

Bidding while on light or limited duty. A Memorandum of Understanding, H1N-NA-C 119 dated March 16, 1987 (M-00752) governs bidding by letter carriers on light or limited duty. It provides:

The following procedures will be used in situations in which a regular letter carrier, as a result of illness or injury, is temporarily unable to work his or her normal letter carrier assignment, and is working another assignment on a light duty or limited duty basis, or is receiving Continuation of Pay (COP) or compensation as a result of being injured on the job, sick leave, or annual leave, or Leave Without Pay (LWOP) in lieu of sick leave.

A) A regular letter carrier who is temporarily disabled will be allowed to bid for and be awarded a letter carrier bid assignment in accordance with Article 41, Section 1.C.1, or, where applicable, in accordance with the provisions of a local memorandum of understanding, provided that the letter carrier will be able to assume the position within the six (6) months from the time at which the bid is placed.

B) Management may, at the time of submission of the bid or at any time thereafter, request that the letter carrier provide medical certification indicating that the letter carrier will be able to perform the duties of the bid-for position within six (6) months of the bid. If the letter carrier fails to provide such certification, the bid shall be disallowed, and, if the assignment was awarded, it shall be reposted for bidding. Under such circumstances, the letter carrier shall not be permitted to re-bid the next posting of that assignment.

C) If at the end of the six (6) month period, the letter carrier is still unable to perform the duties of the bid-for position, management may request that the letter carrier provide new medical certification indicating that the letter carrier will be able to perform the duties of the bid-for position within the second six (6) months after the bid. If the letter carrier fails to provide such new certification, the bid shall be disallowed and the assignment shall be reposted for bidding. Under such circumstances, the letter carrier shall not be permitted to re-bid the next posting of that assignment.

D) If at the end of one (1) year from the placement of the bid the letter carrier has not been able to perform the duties of the bid-for position, the letter carrier must relinquish the assignment, and shall not be permitted to re-bid the next posting of that assignment.

E) It is still incumbent upon the letter carrier to follow procedures in Article 4l.l.B.l to request notices to be sent to a specific location when absent. All other provisions relevant to the bidding process will also apply. Letter carriers who bid to a higher level assignment pursuant to the procedures described in the preamble and Part I Bidding, above, will not receive higher level pay until they are physically able to, and actually perform work in the bid-for higher level position.

If an employee who has accepted, and is working, a light or limited duty assignment subsequently bids and is awarded a new bid position pursuant to this memorandum, there is no contractual requirement to adjust the light or limited duty assignment as a result of the newly awarded bid position. If, however, management determines that a new limited duty assignment is in order, the new assignment must comply with ELM Section 546.142 relative to the newly awarded bid position.

Limited Duty work is work provided for an employee who is temporarily or permanently incapable of performing his/her normal duties as a result of a compensable illness or injury. The term limited duty work was established by Title 5 Code of Federal Regulations, Part 353—the O.P.M. regulation implementing 5. U.S.C. 8151(b), that portion of the Federal Employees’ Compensation Act (FECA) pertaining to the resumption of employment following compensable injury or illness. USPS procedures regarding limited duty are found in Part 540 of the Employee & Labor Relations Manual (ELM). The Office of Workers’ Compensation Programs has the exclusive authority to adjudicate compensation claims and to determine the medical suitability of proposed limited duty work.

However, ELM Section 546.14, below, provides for additional rules that must be observed when offering limited duty work.

546.14 Disability Partially Overcome

546.142 Obligation.

When an employee has partially overcome the injury or disability, the USPS has the following obligation:

a. Current Employees. When an employee has partially overcome a compens-able disability, the Postal Service must make every effort toward assigning the employee to limited duty consistent with the employee’s medically defined work limitation tolerance (see 546.611). In assigning such limited duty, the Postal Service should minimize any adverse or disruptive impact on the employee. The following considerations must be made in effecting such limited duty assignments:

(1) To the extent that there is adequate work available within the employee’s work limitation tolerances, within the employee’s craft, in the work facility to which the employee is regularly assigned, and during the hours when the employee regularly works, that work constitutes the limited duty to which the employee is assigned.

(2) If adequate duties are not available within the employee’s work limitation tolerances in the craft and work facility to which the employee is regularly assigned within the employee’s regular hours of duty, other work may be assigned within that facility.

(3) If adequate work is not available at the facility within the employee’s regular hours of duty, work outside the employee’s regular schedule may be assigned as limited duty. However, all reasonable efforts must be made to assign the employee to limited duty within the employee’s craft and to keep the hours of limited duty as close as possible to the employee’s regular schedule.

(4) An employee may be assigned limited duty outside of the work facility to which the employee is normally assigned only if there is not adequate work available within the employee’s work limitation tolerances at the employee’s facility. In such instances, every effort must be made to assign the employee to work within the employee’s craft within the employee’s regular schedule and as near as possible to the regular work facility to which the employee is normally assigned.

ELM 546.14 specifies the steps that must be taken in seeking limited duty work in order to ensure the assignments are minimally disruptive to the ill or injured employee. The Step 4 Settlement G90N-4G-C 95026885, January 28, 1997 (M-01264), specifically provides that the provisions of ELM 546.141 (currently ELM 546.142) are enforceable through the grievance/arbitration procedure.

The issue of limited duty work for Transitional Employees is addressed in Question 12 of the parties’ joint Questions and Answers on TEs. The complete TE Q&As are found on pages 7-10-7-15.

QUESTIONS AND ANSWERS (42) NALC transitional EMPLOYEES

The attached jointly-developed document provides the mutual understanding of the national parties on issues related to NALC Transitional Employees. This document may be updated if agreement is reached on additional matters related to transitional employees.

Date: February 20, 2009

12. May transitional employees who have an on the job illness or injury be assigned to work in other crafts?

Only if the assignment to another craft is consistent with Section 546 of the Employee and Labor Relations Manual and relevant Department of Labor regulations.

An employee could be offered a limited duty assignment that meets OWCP’s requirements, but fails to meet the requirements of ELM 546.142. Carriers refusing such disputed assignments could risk termination of compensation benefits. These situations are addressed in the Memorandum of Understanding M-01120, dated January 29, 1993 which allows a partially recovered employee to accept a limited duty job offer “under protest” and still pursue a grievance concerning the assignment. The memorandum provides that:

1. By accepting a limited duty assignment, an employee does not waive the opportunity to contest the propriety of that assignment through the grievance procedure, whether the assignment is within or out of his/her craft.

2. An employee whose craft designation is changed as a result of accepting a limited duty assignment and who protests the propriety of the assignment through the grievance procedure shall be represented during the processing of the grievance, including in arbitration, if necessary, by the union that represents his/her original craft.

For example, if a letter carrier craft employee is given a limited duty assignment in the clerk craft, and grieves that assignment, the employee will be represented by the NALC. If a clerk craft employee is given a limited duty assignment in the letter carrier craft, and grieves that assignment, the employee will be represented by the APWU.

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