APWU Wins Important FMLA Arbitration
APWU Web News Article 43-2012, April 23, 2012
The APWU won an important arbitration case on April 18, when Arbitrator Shyam Das ruled that the Postal Service cannot require employees to use forms developed by the Department of Labor (DOL) when they submit certification for leave under the provisions of the Family & Medical Leave Act (FMLA). Das’ ruling overturned a Postal Service policy, announced on July 6, 2010, that required employees to use DOL forms. The decision was issued in response to a national-level grievance filed by the APWU on Oct. 4, 2010.
The union vigorously defends employees’ right to use other formats for submitting certification in an effort to protect members’ privacy. The union notes that medical certification forms created by the DOL in 2009 permit healthcare providers to supply information beyond what is actually required under the law. The Form WH-380-E and WH-380-F allow healthcare providers to state the employee’s medical diagnosis on the form, although they are not required to do so.
The APWU has consistently asserted that an employee’s medical diagnoses are private health information that need not, and are not, required to be stated on the form. For that reason, the APWU has encouraged union members to use forms developed by the APWU.
In the grievance, the union wrote,
“It is the APWU’s position, consistent with the Collective Bargaining Agreement, applicable Department o Labor (DOL) regulations, the parties’ established accepted past practice (for over 15 years), and the mutual understanding and agreement between the parties at the national level, that (1) employees are not required to use a specific format or form for FMLA certification; (2) employees may use APWU forms for FMLA certification, or any other format or forms that contain the information required under 29 CFR 825.306; and (3) the submission of FMLA certification using DOL WH-380 forms is optional.”