[ v34 p242 ]
34:0242(49)AR
The decision of the Authority follows:
34 FLRA NO. 49
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, 7TH SIGNAL COMMAND
FORT RITCHIE, MARYLAND
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1153
0-AR-1654
DECISION
January 12, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an exception to the
award of Arbitrator James P. Whyte. The grievant filed a
grievance protesting the denial of sick leave for the purpose of
caring for her son who had chickenpox. The Arbitrator sustained
the grievance and awarded the grievant the sick leave she had
been denied.
The U.S. Department of the Army (the Agency) filed an
exception to the award under section 7122(a) of the Federal
Service Labor - Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations on behalf of
Headquarters, 7th Signal Command, Fort Ritchie, Maryland (the
Activity). The National Federation of Federal Employees, Local
1153 filed an opposition to the exception.
For the reasons stated below, the Agency fails to establish
that the award is contrary to regulation, and we will deny the
exception.
II. Background and Arbitrator's Award
On February 8, 1988, the grievant telephoned her supervisor
to request sick leave in order to care for her 5-year old
son who was afflicted with chickenpox. She was informed that she
would have to take annual leave because sick leave was not
authorized to care for someone with chickenpox because it was not
a contagious disease. When the grievant returned to work the
following week, she renewed her request for sick leave for 40
hours, the period of work time during which she cared for her
son. In support of her request, the grievant submitted a letter
from a physician stating that the grievant's son had been
diagnosed as having chickenpox and that he was "contagious to
other children" and required a "quarantine type situation."
Arbitrator's Award at 3 (quoting from the physician's letter).
The grievant also submitted a statement from her son's day-care
center stating that the grievant's son was restricted from
attending the center from February 8 to February 12 because he
had chickenpox.
Her request for sick leave was again denied. The grievant
filed a grievance protesting the denial of sick leave, and the
grievance was submitted to arbitration.
The Arbitrator recognized that resolution of the grievance
was governed by 5 C.F.R. 630.201(b)(3), which defines "contagious
disease," and 5 C.F.R 630.401(c), which pertains to when an
employee shall be granted sick leave. 5 C.F.R. 630.201(b)(3)
defines "contagious disease" as "a disease which is ruled as
subject to quarantine, requires isolation of the patient, or
requires restriction of movement by the patient for a specified
period as prescribed by the health authorities having
jurisdiction." 5 C.F.R. 630.401(c) provides that an agency shall
grant sick leave to an employee when the employee is "required to
give care and attendance to a member of his immediate family who
is afflicted with a contagious disease."
The Arbitrator ruled that Pennsylvania health regulations
applied to determine if the grievant's son was subject to
quarantine, required isolation, or required restriction of
movement. Although the grievant worked in Maryland, she and her
son resided in Pennsylvania, and the Arbitrator determined that
the health regulations of the state of residence of the immediate
family member applied. The Arbitrator noted that Pennsylvania
health regulations do not list chickenpox as a "communicable"
disease required to be reported to health authorities. However,
the Arbitrator noted that the Pennsylvania Code listed chickenpox
as a "communicable" disease in school children requiring
exclusion from school when diagnosed by a physician. Therefore,
the Arbitrator concluded that when a physician requires
a school child to be excluded from school because of chickenpox,
Pennsylvania health regulations recognize chickenpox as a
contagious disease within the meaning of 5 C.F.R. 630.201. The
Arbitrator found that the physician's diagnosis that the
grievant's son had chickenpox requiring a "quarantine type"
situation also required that the grievant's son be excluded from
his day-care school.
Accordingly, the Arbitrator substained the grievance and
awarded the grievant 40 hours of sick leave to be substituted for
her 40 hours of annual leave.
III. Positions of the Parties
A. The Agency
The Agency contends that the award is contrary to 5 C.F.R.
630.201 and 630.401. The Agency maintains that these provisions
are very specific in defining the term "contagious disease" and
identifying what criteria must be met before sick leave is
authorized. The Agency argues that the Pennsylvania Code does not
refer to chickenpox as an illness which requires a limitation on
the freedom of movement of the patient. The Agency concedes that
a child with chickenpox is to be excluded from school for a short
period, but maintains that the exclusion from school is the only
restriction. The Agency also argues that the Pennsylvania Code
does not consider chickenpox to be a contagious disease requiring
isolation or quarantine. The Agency further argues that neither
the C.F.R. provisions nor the Pennsylvania Code provisions permit
a physician to verify the presence of a contagious disease.
B. The Union
The Union contends that the grievant's son's case of
chickenpox meets the definition of contagious disease in 5 C.F.R
630.201. The Union argues that the physician's letter and the
statement of the day-care center established that the grievant's
son's chickenpox was a contagious disease within the meaning of 5
C.F.R. 630.201 because the letter and the statement provide that
the grievant's son required isolation and restriction of movement
as a result of his chickenpox. The Union also contends that the
Pennsylvania Code recognizes chickenpox to be a contagious
disease. The Union maintains that the Pennsylvania Code lists
chickenpox as a communicable disease in school children and
requires that children with chickenpox be excluded from school
for "six days from the last crop of vesicles." Union's Opposition
at 3 (quoting 28 Pennsylvania Code Section 27.71).
Analysis and Conclusions
We conclude that the Agency fails to establish that the
award is contrary to 5 C.F.R 630.201 and 630.401. We find that
the Arbitrator properly ruled that the grievant's son was
afflicted with a contagious disease within the meaning of 5 C.F.R
630.201 and that, therefore, the grievant was entitled to 40
hours of sick leave under 5 C.F.R. 630.401.
"Contagious disease" is defined under 5 C.F.R. 630.201 as a
"disease which is ruled as subject to quarantine, requires
isolation of the patient, or requires restriction of movement by
the patient for a specified period as prescribed by the health
authorities having jurisdiction." 28 Pennsylvania Code Section
27.71 pertains to "Communicable Diseases In School Children" and
provides for the "Exclusion for specified diseases and infectious
conditions." Section 27.71 specifies that the person in charge of
a private preschool, among others, "shall exclude students from
school who have been diagnosed by a physician . . . for the
indicated period of time for the following diseases: . . . (6)
Chickenpox--Six days from the last crop of vesicles."
The Arbitrator ruled that when a school child is excluded
from school as a result of a physician's diagnosis that the child
has chickenpox, the Pennsylvania health regulations recognize
chickenpox as a contagious disease within the meaning of 5 C.F.R
630.201. We agree with the Arbitrator's interpretation and
application of 5 C.F.R. 630.201. We agree that when, in
accordance with 28 Pennsylvania Code Section 27.71, the
grievant's son was excluded from his day-care center because he
had chickenpox, the grievant's son had a contagious disease. We
find that the exclusion of the grievant's son from his day-care
center for 5 days as a result of a physician's diagnosis of
chickenpox constituted a "restriction of movement by the patient
for a specified period as prescribed by the health authorities
having jurisdiction" within the meaning of 5 C.F.R. 630.201.
We reject the Agency's claims that the grievant's son's
freedom was not sufficiently limited and that a contagious
disease cannot be verified by a physician. We find that under 28
Pennsylvania Code Section 27.71, exclusion from school based on
the diagnosis by a physician of chickenpox satisfies the
requirements of 5 C.F.R. 630.201 of a restriction of movement as
prescribed by health authorities having jurisdiction. We also
note that the Arbitrator's interpretation of 5 C.F.R. 630.201 is
consistent with the advice given agencies by the Comptroller
General. See 36 Comp. Gen. 183 (1956).
The Agency's exception provides no basis for finding the
award deficient. Accordingly, we will deny the exception.
V. Decision
The Agency's exception is denied.