[ v34 p242 ]
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.