February 2002
The Postal Service has definitely made attendance its number one priority in recent months. We now have centralized absence control officers taking sick calls in many locations and management is clearly cracking down very hard on absent employees. With this crisis mind set by management, contractual and even legal rights of employees are blurring fast. Employees have both rights and responsibilities when calling in for necessary emergencies and illnesses, which will be discussed later. And employees or their family members should always be spoken to courteously.
But first, Postal employees need to realize that truly crappy attendance will eventually get them fired. We have heard all the arguments before, such as, "They shouldn't give us sick leave if we can't use it!" Unfortunately, arbitrators have heard all the arguments before, too, and sustain management when employees have irregular attendance over substantial periods of time, especially when management has disciplined the employees in a progressive fashion. The moral of this story is: If you can come to work, do come to work! But if you can't come to work, here is what you need to know.
Substantiation
If you are not currently under a letter of substantiation, and if management says to substantiate, then properly and effectively substantiate the absence. This does not mean a letter from your spouse, friend, or cat. This means evidence from a proper authority for the type of absence. If the absence is medical, visit your physician. If the absence is mechanical, bring the repair bill in. You get the drift. The best part is, if you substantiate the absence management will have a harder time disciplining you for AWOL, and the union will have better tools to reverse such discipline if they try.
If you incur expenses substantiating a medical absence, submit copies of your bills and ask for reimbursement. If management says, "No," then file a grievance. We cannot promise reimbursement, but if your attendance is decent and management had no apparent reasons to make you substantiate, we win these grievances much more often than not. The key protection for the employee is that management must have some reasonable basis for raising the "protection of the interests of the Postal Service" issue when requesting substantiation, as discussed in ELM 513.361.
513.36 Sick Leave Documentation Requirements
513.361 Three Days or Less
For periods of absence of 3 days or less, supervisors may accept the employee’s statement explaining the absence. Medical documentation or other acceptable evidence of incapacity for work or need to care for a family member is required only when the employee is on restricted sick leave (see 513.39) or when the supervisor deems documentation desirable for the protection of the interests of the Postal Service. Substantiation of the family relationship must be provided if requested.
Letters of Substantiation
Under current ELM Section 513.9, management can place employees under notice that all absences must be substantiated. Such letters are administrative actions, not disciplinary actions, but they can still be grieved under Article 19, citing the ELM, Section 513.9 (ELM Version 16.1). Such grievances examine whether the employee's sick leave indicates abuse of the sick leave privilege and whether management is using a just process for attendance review on a quarterly basis. Grievances may get the letters thrown out completely or attain prompt removal of the letter if attendance improves.
Dependent Care Sick Leave
In 1995 Letter carriers were extended an extra right to use sick leave to care for or otherwise attend to family members, if the condition affecting the family would qualify the letter carrier for sick leave if he or she were affected. Dependent care sick leave (SLDC) is a source of confusion for employees and supervisors alike. A very simple rule can prevent most misunderstandings. Sick leave for dependent care is subject to the same rules and regulations as sick leave always was governed by, except for the extended coverage for family members. For example, can an employee be required to substantiate an SLDC absence? Yes, but not solely because it is for SLDC. The request should be subject to the same criteria as any sick call, with substantiation only requested if necessary to protect the interests of the service. The current ELM Section 513.361 speaks to SLCD in clearly referencing "need to care for a family member" as part of its definition.
FMLA Protections
The Family and Medical Leave Act of 1993 made some absences "no fault" for discipline. This sounds good, but the law does not cover everybody or everything. The law poses some headaches for employees and employers.
Employees of larger concerns (including the Postal Service) are covered if they have a full year of service and if they have actually worked 1,250 hours in the immediately preceding twelve months. We have problems when employees have bad attendance because scheduled absences and unscheduled absences can quickly reduce actual work below this 1,250 total and management's computerized attendance programs can identify employees who don't currently qualify. Again, the moral of this story is: If you can come to work, do come to work! For yourself and your family, protect your job and your entitlement to FMLA protection.
In many instances of attendance-related discipline, we find that the employees did not know their FMLA rights (and did not seek FMLA protection), while their supervisors did not meet their responsibilities to provide Publication 71 and track the absences. Only after the discipline is issued do these issues get their proper attention, if even then.
The FMLA covers employees and their family members for serious health conditions, but not minor health issues. The ELM Section 515.2 discusses which family members are covered, the six types of conditions covered under the Act, and certain minor conditions which are not covered. See below for a complete citation of ELM 515.2:
FMLA Definitions from the Employee and Labor Relations Manual
ELM 16.1, February 8, 2001
515.2 Definitions
The following definitions apply for the purposes of 515: a. Son or daughter — biological, adopted, or foster child, stepchild, legal ward, or child who stands in the position of a son or daughter to the employee, who is under 18 years of age or who is 18 or older and incapable of self-care because of mental or physical disability. b. Parent — biological parent or individual who stood in that position to the employee when the employee was a child. c. Spouse — husband or wife. d. Serious health condition — illness, injury, impairment, or physical or mental condition that involves any of the following: (1) Hospital care — inpatient care (i.e., an overnight stay) in a hospital or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or subsequent to such inpatient care. (2) Absence plus treatment — a period of incapacity of more than 3 consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves either one of the following: Treatment two or more times by a health care provider. (b) Treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the health care provider. (3) Pregnancy — any period of incapacity due to pregnancy or for prenatal care. (4) Chronic condition requiring treatments — a chronic condition that meets all of the three following conditions: (a) Requires periodic visits for treatment by a health care provider or by a nurse or physician’s assistant under direct supervision of a health care provider. (b) Continues over an extended period of time (including recurring episodes of a single underlying condition). (c) May cause episodic, rather than a continuing period of, incapacity. Examples of such conditions include diabetes, asthma, and epilepsy. (5) Permanent or long-term condition requiring supervision — a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples of such conditions include Alzheimer’s, a severe stroke, and the terminal stages of a disease. (6) Condition requiring multiple treatments (nonchronic condition) — any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than 3 consecutive calendar days in the absence of medical intervention or treatment. Examples of such conditions include cancer (which may require chemotherapy, radiation, etc.), severe arthritis (which may require physical therapy), and kidney disease (which may require dialysis). Note: Cosmetic treatments (such as most treatments for orthodontia or acne) are not “serious health conditions” unless complications occur. Restorative dental surgery after an accident or removal of cancerous growths is a serious health condition provided all the other conditions are met. Allergies, mental illness resulting from stress, and treatments for substance abuse are protected only if all the conditions are met. Routine preventative physical examinations are excluded. Also excluded as a regimen of continuing treatments are treatments that involve only over-the-counter medicine or activities such as bed rest that can be initiated without a visit to a health care provider.
Type of Leave for FMLA
Employees under current USPS regulations may be required to use sick leave for their own serious health conditions, but cannot be forced to use annual leave. Employees have the right to elect leave without pay before forfeiting vacation privileges, as resolved in Step 4 Decision M-1371:
