31:0172(21)AR - Transportation, FAA and National Association of Air Traffic Specialists -- 1988 FLRAdec AR
[ v31 p172 ]
The decision of the Authority follows:
31 FLRA NO. 21 FEDERAL AVIATION ADMINISTRATION U.S. DEPARTMENT OF TRANSPORTATION Agency and NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS Union Case No. O-AR-1265 DECISION I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator Frederick U. Reel. The issue before the Arbitrator was whether "the Agency's limited confidentiality and related procedures conflict with the confidentiality requirements set forth in the Office of Personnel Management's Federal Personnel Manual Supplement 792-2." Award at 1-2. The Arbitrator concluded that the Agency's policy, which required employees to consent to limited disclosure as a condition for self-referral to the Agency's Employee Assistance Program (EAP), violated the requirement for the voluntary consent contained in the regulations of the Office of Personnel Management (OPM). The Arbitrator ordered the Agency to "abandon the 'limited confidentiality' policy with respect to self-referrals, and to permit such employees to utilize the EAP without having to waive the confidentiality provided for in the (parties' collective bargaining) Agreement." Award at 11-12. The exceptions were filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. 1/ The Union filed an opposition to the Agency's exceptions. 2/ The U.S. Department of Health and Human Services (HHS) filed a brief as an amicus curiae in support of the Agency's exceptions. The Agency contends that the Arbitrator's award is contrary to law, rule and regulation. For the reasons discussed below, we conclude that the Arbitrator's award conflicts with Government-wide regulations. Accordingly, the award is set aside. II. Background This case concerns a change in the Agency's policy for the confidential treatment of records for employees who refer themselves to the EAP. 3/ Prior to August 1985, the Agency's policy provided confidential treatment for the records of employees who refer themselves to a drug program through the EAP. That policy was revised in August 1985 to require self-referred employees to sign a waiver permitting disclosure of their drug problem to the Agency's Regional Flight Surgeon and the Facility Manager. An employee who does not sign the waiver is not referred to treatment and the Agency is not notified of his or her contact with the EAP. The Union filed a grievance concerning the Agency's revised policy. The grievance alleged that the revised policy violated Article 73, section 5 of the parties' collective bargaining agreement. The agreement provides that "(c)onfidentiality of records shall be maintained in accordance with governing (OPM) regulations by both parties." Award at 1. The grievance was submitted to arbitration. III. Arbitrator's Award The parties stipulated that the issue for resolution was whether "the Agency's limited confidentiality and related procedures conflict with the confidentiality disclosure requirements set forth in the (OPM's) Federal Personnel Manual (FPM) Supplement 792-2." Award at 1-2. The Arbitrator further defined the issue as "whether the Agency, by conditioning access to its (EAP) in certain self-referral cases by requiring employees (with a substance abuse problem who are involved in positions directly related to air safety) to waive confidentiality, has violated the OPM regulation, enshrined in the agreement, which permits such a waiver only when it is voluntary and not coerced." Award at 9. See also Award at 3-4, 6. The Arbitrator found that the Agency's revised policy violated the agreement because it conflicted with the OPM requirement in FPM Supplement 792-2 that waivers must be voluntary. He found that the waiver was not voluntary if an employee was precluded from consulting with the EAP without signing such a waiver. The Arbitrator noted that this dispute involved the interpretation and application of an OPM regulation. The Agency introduced into evidence a letter from an OPM employee which the Agency viewed as approving its policy and procedures. The Arbitrator concluded that the OPM letter was not dispositive because it did not refer to the issue of the voluntary nature which he viewed as the "heart of the present controversy." Award at 11. The Arbitrator ordered the Agency "to abandon the 'limited confidentiality' policy with respect to self-referrals, and to permit such employees to utilize the EAP without having to waive the confidentiality provided for in the Agreement." Award at 11-12. IV. Positions of the Parties A. Agency's Exceptions The Agency contends that the Arbitrator's award is contrary to law, rule or regulation on two grounds. First, the Agency argues that the Arbitrator's findings regarding its limited confidentiality policy are contrary to FPM Supplement 792-2. The Agency asserts that its policy and procedures are clearly supported by the explicit language of the regulations. The Agency argues that the OPM regulations provide for the disclosure of certain patient information when there is a "bona fide need for such information to evaluate hazards which the employment may pose to the patient or others, or where such information is otherwise directly relevant to the employment situation." Exceptions at 3. See FPM Supplement 792-2, Subchapter S4; Appendix A, Sections 2.18, 2.38(c). The Agency argues that OPM's regulations, in situations in which employee consent is necessary, only require that: (1) the employee realizes what he or she is agreeing to and releases the information freely; (2) the information is relevant and necessary; and (3) the scope of disclosure is limited. Exceptions at 4. The Agency asserts that its limited confidentiality policy and procedures meet these requirements for four reasons: (1) the employees are given a free and unfettered choice in selecting either a referral through the EAP or in selecting treatment in the assistance program of their own choosing, Exceptions at 5-6; (2) the employees involved in this dispute are air traffic control specialists who perform valid aviation safety-related duties, Exceptions at 5; (3) the Agency's primary and overriding interest is in the preservation of air safety, Exceptions at 5; (4) the sole purpose of the disclosure is to ensure that the employee is not performing safety-related duties until the Flight Surgeon can certify that the employee is capable of safely performing his or her duties, Exceptions at 5-6; and (5) the information is disclosed only to the Flight Surgeon and the Facility Manager for these limited purposes, Exceptions at 6. The Agency also argues that its limited confidentiality policy is supported by OPM's summary of its regulations. The summary states that the regulations "attempt to strike a balance between the recognized need for privacy and anonymity on the part of those who obtain treatment and other values that sometimes conflict with the achievement of this goal." Exceptions at 5. For this reason the Agency asserts that confidentiality is not absolute and must be balanced against other equally valid considerations, in this case, the preservation of air safety. Exceptions at 5. Therefore, the Agency contends that the Arbitrator's finding that its policy and procedure concerning limited confidentiality is contrary to FPM Supplement 792-2. As its second ground for alleging that the award is deficient, the Agency argues that the Arbitrator erred in concluding that the Agency's requirement that self-referred employees sign a waiver prior to receiving a consultation through the EAP was coercive. The Agency asserts that requiring employees to sign waivers does not prevent those employees from receiving treatment because they remain free to seek treatment through the assistance program of their own choosing; merely because an employee is faced with a choice which he or she finds unpleasant does not make the employee's decision coerced. Moreover, the Agency argues that requiring a signed waiver is a logical and necessary step to preserve the integrity of the Agency's air safety operation. Exceptions at 9. B. Union's Opposition In opposition, the Union makes three contentions concerning the merits of the dispute: (1) the law requires strict confidentiality absent the written consent of the patient; (2) the limited exceptions to this requirement of strict confidentiality contained in FPM Supplement 792-2 do not include aviation safety-related duties; and (3) the Arbitrator's finding that the waiver requirement is coercive is supported by the facts of the case. C. Amicus Curiae HHS contends that the Agency's policy is permitted under Federal statute and the HHS regulations, 42 C.F.R. 2.1 et seq., upon which FPM Supplement 792-2 is based. Amicus Brief at 2. HHS asserts that its Office of General Counsel has interpreted the HHS regulations as permitting a requirement that an alcohol or drug abuse patient consent to the disclosure of records as a condition of admission to treatment. HHS argues that under these interpretations, the Agency's requirement in this case that a waiver be signed as a condition precedent to a consultation with the EAP does not render that consent involuntary. Amicus Brief at 4-9. HHS maintains that the demand for air safety provides a more than adequate basis for finding the Agency's policy reasonable under the HHS regulations. Amicus Brief at 12-13. HHS also argues that the Agency's policy of limited confidentiality is authorized under 42 C.F.R. 2.38, which provides that a "program may make disclosures under this section to public or private agencies (sic), employment services, or employers." Amicus Brief at 9. Therefore, since the Agency is the employer of the patients who use its EAP program and the Agency's policy otherwise comports with the requirements of that section, section 2.38 authorizes disclosures to the Agency by the EAP. Amicus Brief at 9-10. V. Analysis and Conclusions We find that the Arbitrator's award is contrary to Government-wide regulations, specifically, FPM Supplement 792-2. We reach this conclusion for two separate reasons: (1) OPM and HHS have interpreted the regulations applicable to this dispute to recognize that disclosure may be appropriate in certain limited circumstances; and (2) the record does not demonstrate that the requirement of a signed consent form as a condition precedent to EAP consultation means that signing the consent form was not voluntary. We will discuss these reasons separately below. A. FPM Regulations The Arbitrator found that the Agency's policy required employees to sign a waiver authorizing disclosure of their referral to a drug treatment program to the Flight Surgeon and the Facility Manager. The Arbitrator concluded that because the waiver was a condition precedent to referral, the Agency's policy violated FPM Supplement 792-2. We find that the Agency's policy is consistent with FPM Supplement 792-2. As noted, OPM and HHS have interpreted the regulations applicable to this dispute to recognize that disclosure may be appropriate in certain limited circumstances. We agree with their interpretations and find that such circumstances are present here. The Arbitrator failed to recognize that disclosure of certain information in limited circumstances is permitted by the express terms of FPM Supplement 792-2. Section 2.31 of Appendix A to FPM Supplement 792-2 explicitly provides that an employee may consent to the disclosure of patient records. Subsection (c) of that section delineates the types of consent that are ineffective to authorize disclosure. Subsection (c) does not indicate that requiring the execution of a consent form as a condition for treatment renders the consent form ineffective to authorize disclosure. In circumstances in which an employee consents to disclosure, the disclosure of patient records should be limited to the information necessary in light of the need or purpose for the disclosure. FPM Supplement 792-2, Appendix A, section 2.18(a). In addition, section 2.38 allows the disclosure of more specific information where either (1) there is a bona fide need for such information to evaluate hazards which the employment may pose to the patient or to others, or (2) where such information is directly relevant to the employment situation. We find that the preservation of air safety falls within the parameters of this regulation. The Agency has a bona fide need to know if an air traffic specialist is undergoing treatment for drug abuse since drug abuse could pose a significant hazard to the traveling public. Information concerning a potentially hazardous situation due to an air traffic specialist's drug abuse is obviously directly related to the employment situation. Executive Order 12564, entitled "Drug Free Workplace," specifically recognizes that the use of illegal drugs, on or off duty, by Federal employees can pose a serious health and safety threat to members of the public and other Federal employees. See 51 Fed. Reg. 32889 (Sept. 17, 1986). For these reasons, and consistent with Executive Order 12564, we find that the public interest in the preservation of air safety falls within the parameters of FPM Supplement 792-2. An interpretation of FPM Supplement 792-2 that would not include air safety as an area in which there is a bona fide need for drug-abuse related patient information would unreasonably limit the areas to which the regulation would otherwise apply to allow disclosure. We, therefore, conclude that the Arbitrator's conclusion that disclosure was not allowed under applicable regulations is contrary to FPM Supplement 792-2. B. Voluntariness of Consent The Arbitrator found that air traffic specialists who referred themselves to the Agency's EAP were required to sign a waiver authorizing disclosure of their referral to treatment for drug abuse. He found that the Agency's policy precluded those employees from consulting with the EAP unless they signed the waiver. Therefore, he concluded that the waiver was not voluntary, but was coerced. Award at 9-11. We disagree. The fact that air traffic specialists seeking referral to treatment are required to sign a waiver authorizing disclosure of their referral by the EAP to the Flight Surgeon and the Facility Manager does not support a conclusion that the waiver was not voluntary. The record in this dispute does not indicate that the EAP consultation is the only means by which employees may obtain consultations for drug abuse. Neither the parties' agreement, applicable regulations, nor the Agency's revised policy precludes employees from seeking privately funded consultations with a treatment program of their own choosing. See Exceptions at 2-3. The Union does not dispute this. Moreover, the record indicates that employees are responsible for the costs of the drug treatment program whether they receive treatment through the program recommended by the EAP or through the program of their own choosing. See Agency Post - Hearing Brief at 12. Thus, air traffic specialists seeking treatment for drug abuse have other options available to them and participation in a drug abuse program through referral by the EAP is purely voluntary. The availability of alternatives, or the lack of evidence that there are no reasonable alternatives, without more, does not support a finding that the consent was not voluntary. Whether consent is given voluntarily and without coercion is determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 2041, 2047-48 (1973). It is well settled that the party alleging coercion must have had no other means of immediate relief from the actual or threatened coercion than by compliance with the demand. See Employers Insurance of Wausau v. United States, 764 F.2d 1572, 1576 (Fed. Cir. 1985). Moreover, the law permits hard choices as long as the choice between the two alternatives, however unpleasant, is understood by the employee and freely made. Covington v. Department of Health and Human Services, 750 F.2d 937, 943 (Fed. Cir. 1984). These conclusions by the courts are consistent with the legal opinions of HHS that disclosure may be required as a condition to treatment under its regulations. Amicus Brief at 4-9. HHS cites to numerous legal opinions of its Office of General Counsel interpreting 42 C.F.R. 2.1 et seq., which support this position. For example, as a condition of treatment, disclosure has been required to a third-party payer, to the central registry for alcoholism patients, to fellow patients, to State and local officials, to public health officials, to Boards of Correction, to law enforcement officials, to the Virginia Commonwealth Attorney, and to the family. In these opinions, HHS has specifically determined that under its regulations, written consent required to obtain admission to treatment was within the meaning of consent "given freely, voluntarily, and without coercion" because the patient had the option of entering into treatment in that program or seeking treatment elsewhere. Amicus Brief at 4-9. In terms of this case, as noted, it is undisputed by the parties that the EAP consultation is not the only means by which an employee may obtain consultations for drug abuse. Further, consistent with the legal opinions of HHS, the consent required of air traffic specialists is within the meaning of consent given "freely, voluntarily, and without coercion." We, therefore, conclude that because the air traffic specialists have options for treatment available to them and that, based on the totality of the circumstances, the consent required falls within the definition of voluntary consent. VI. Decision For the reasons set forth above, the Arbitrator's award is set aside. Issued, Washington, D.C., February 22, 1988 Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1/ The Agency requested a stay of the award when it filed its exceptions with the Authority on November 6, 1986. However, effective December 31, 1986, the Authority's Regulations were revised to to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken. Footnote 2/ The Union alleges, among other things, that the Agency's exceptions were untimely. The Arbitrator's award, dated October 3, 1986, was served on the parties by mail on October 8, 1986. See Exceptions, Attachment 1. Under section 7122(b) of the Statute and sections 2425.1 and 2429.22 of the Authority's Rules and Regulations, the Agency's exceptions were required to be filed with the Authority's National Office or postmarked by November 11, 1986. Therefore, the Agency's exceptions, filed with the Authority on November 6, 1986, were timely. Footnote 3/ The Agency's EAP offers counseling and referral to treatment resources. It does not provide treatment. The EAP is available to employees who are referred to the program by their supervisor or manager and to employees who refer themselves.