AMERICAN ARBITRATION ASSOCIATION

In the Matter of Arbitration Between:
MIDDLETOWN BOROUGH POLICE
OFFICERS ASSOCIATION AAA Case#14 360 L 121712
(Act 111 Interest Arbitration)
and
MIDDLETOWN BOROUGH Hearing Date: 2/7/13
Panel of Arbitrators
Jason M. Weinstock, Esquire
IRA H. P.C.
Police-Appointed Arbitrator
Adam Santucci, Esquire
McNEES WALLACE & NURICK LLC
Borough-Appointed Arbitrator
Walt De Treux, Esquire
Impartial Arbitrator and Panel Chair
FOREWARD
The undersigned arbitrators were duly appointed as the Board of Arbitration
pursuant to the provisions of Section 4(b) of the Act of June 24, 1968, P.L. 237, as
amended. 43 P.S. §217.4(b) (Act 111) and the procedures of the Philadelphia Office
of the American Arbitration Association. The Board acknowledges that the parties
agreed to waive the time limits under Act 111. A hearing in this matter was
conducted on February 7, 2013 at the Borough offices in Middletown, Pennsylvania,
at which time both parties had a full and fair opportunity to present documentary
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and other evidence, examine and cross-examine witnesses, and offer argument in
support of their respective positions.
In reviewing the evidence, a majority of the Panel have concluded that the
Borough is experiencing serious financial circumstances. The Borough has had a
structural deficit in the General Fund since at least 1998, which is covered by
revenue from its electrical operations. In 2012, it had an operational deficit of more
than $2.7 million. Its revenues have fallen as its costs have increased. Further, it is
carrying several million dollars in unfunded pension and other post-employment
benefits liability.
The financial situation has led the Borough to consider declaring distressed
municipality status under Act 47. In August 2012, the Commonwealth of
Pennsylvania Department of Community and Economic Development approved the
Borough's application for participation in its Early Intervention Program, which has
provided funding for the Borough to develop a five-year financial management plan
to address its fiscal situation. Creation and implementation of the EIP will hopefully
lead the Borough away from the drastic step of invoking Act 4 7 status.
At the same time, the officers covered by this collective bargaining
agreement have seen their workload increase as the number of full-time officers has
decreased. It cannot be seriously disputed that they earn each dollar they make and
every benefit to which they are entitled.
In reaching the following Award, the Panel has attempted to balance the
Borough's financial concerns with the need to appropriately compensate the
bargaining unit. Savings should be realized operationally in the short term and
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structurally in the long term. The bargaining unit will see increases in their
compensation package with the opportunity to expand on those increases through a
reopener in Years 3 and 4 of the contract, assuming the Borough has and is
achieving fiscal stability.
With those concerns inmind and following Executive Sessions of the Board
of Arbitration, the following Award was adopted by a majority of the Board.
AWARD
1. Term
The term of the agreement shall be for four ( 4) years, commencing
January 1, 2013 and continuing until December 31, 2016.
2. Employment Security (Article 4)
Article 4 shall be deleted in its entirety, as it addresses a non-mandatory
subject of bargaining over which the Borough has not agreed to bargain.
The following language shall be added as the new Article 4 (Seniority),
"Seniority shall be determined by date of hire. In the event
of layoff, officers shall be laid off in reverse order of
seniority. Laid off officers shall be recalled according to
seniority. An officer shall have recall rights for a period of
twenty-four (24) months. Should an officer decline recall,
his recall rights shall terminate."
3. Wages (Article 5)
The base wages for all bargaining unit employees shall be increased
according to the following schedule:
Effective January 1, 2014 ............................ 2%
Effective July 1, 2014 ................................... 1 o/o
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'
There shall be a "reopener" of the wage provision for Years 3 (2015) and
4 (2016). If the parties are unable to agree to terms of the reopener by
December 31, 2014, the dispute shall be referred to interest arbitration.
4. Longevity (Article 6)
In 2014, officers shall receive a longevity payment in the total amount of
1% of base salary, payable on their anniversary date in accordance with
Article 6. (For 2014 only, the formula for calculating longevity is
modified to exclude the number of years of service as multiplier.) There
shall be no longevity payment for 2013. Longevity payments in 2015 and
2016 shall be subject to the reopener described in Paragraph 3 above.
5. Overtime (Article 8)
Paragraphs 2 and 3 of Article 8 shall be amended to read as follows,
"The decision to fill a shift vacancy or assign overtime work shall at the
discretion of the Chief of Police. In the event that a shift vacancy becomes
available with less than seven (7) days' notice, and the Chief determines
that there is a need to fill the shift vacancy, the Chief will utilize a rotating
seniority list. It is understood that the rotating seniority list will include
both full time and part-time officers.
Non-specialized shift vacancies shall be equitably afforded to each officer.
In the event that an officer shall decline the opportunity to fill a shift
vacancy, the next most senior officer shall be offered the opportunity. If
an officer declines an opportunity, he shall not again be eligible for an
opportunity until all other officers shall have been afforded an
opportunity to fill a shift vacancy."
6. K-9 Unit (Article 8.2)
Article 8.2 shall be deleted in its entirety.
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7. Call Time (Article 9)
a) The provision of Article 9 providing compensation for travel time
when called out to work for a distance of more than twenty-five (25)
miles shall be deleted.
b) Part-time officers called to work from off-duty status shall be paid at
the overtime rate, provided the hours worked are in excess of eight
(8) hours per day or forty ( 40) hours per work week as provided in
Article 8.
8. Bereavement Leave (Article 14)
Article 14 shall be amended to read as follows,
1. All full-time employees who have at least one year of service with the
Borough shall be entitled to three (3) days off with pay when a death
occurs in the employee's immediate family.
2. For purposes ofthis section, immediate family shall be defined as
parent, spouse, children, stepchildren, grandparents, grandchildren,
great-grandparents, brother, sister, spouse's parent, spouse's brothers
and sisters.
3. All full-time employees who have at least one year of service with the
Borough shall be entitled to one (1) day off with pay for the death of
an aunt or uncle or spouse's grandparent.
4. An employee shall receive his regular rate of pay, including any
applicable shift differential, for each day of bereavement leave.
5. One (1) additional day shall be granted if the employee must travel
over 100 miles, one way, to the site of the funeral.
6. This Article is intended for the purpose of supplementing pay that an
employee may lose and is not intended as extra pay for days an
employee is not scheduled to work.
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9. Holidays (Article 16)
a) Good Friday and Presidents' Day shall no longer be considered force-
wide holidays but shall be converted to personal days, for a total of
five (5) personal days. Article 17 shall be amended to reflect the
increased number of personal days.
b) The provision granting a compensatory day off for officers working
Independence Day, Thanksgiving Day or Christmas Day shall be
deleted.
c) The filling of any shift vacancy or overtime opportunity on holidays
shall be done in accordance with the provisions of Paragraph 5 above.
10. Sick Leave (Article 20)
Article 20, Section D shall be amended to provide that officers hired on or
after the issuance of this Award shall not be paid for any unused
accumulated sick leave upon separation or retirement from the
Department. Officers hired on or after the issuance of this Award will not
be compensated for all accumulated, unused leave over 120 days at the
end of the calendar year.
11. Medical Insurance (Article 21)
a) Effective as soon as possible following issuance of this Award, officers
will be transitioned to a Qualified High Deductible Health Plan with a
$2500.00 annual deductible, and the Borough will establish, for each
officer, a Health Savings Account (HSA), replacing the HRA provided
for in Article 24 (Article 24 shall be deleted). The Plan and the HSA
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shall remain in place for each year of this Agreement; provided that
the Borough shall have the right to change carriers as long as
comparable coverage is maintained. The HSA will be administered by
a third party who will reimburse the officer upon receiving the
receipt. The health insurance plan provides for 100% coverage after
the high deductible is met. The HSA shall be governed by applicable
Internal Revenue Service rules and regulations.
b) Officers who elect a single plan shall contribute, on a pre-tax basis,
$500.00 annually toward the HSA, and the Borough shall contribute
$2000.00 annually toward such officers' HSA. Officers who elect any
coverage other than a single plan shall contribute, on a pre-tax basis,
$750.00 annually toward the HSA, and the Borough shall contribute
$1750.00 annually toward such officers' HSA. Annual HSA
contributions shall be prorated for officers and the Borough and shall
be made each pay period. Officers HSA contributions shall be made
via payroll deduction. These annual HSA contributions will remain in
effect each year of the agreement, unless modified by mutual
agreement of the parties. Funds remaining in the HSA at the end of
calendar year shall rollover and accumulate for each participant until
termination of employment. It is understood that the annual
contributions for 2013 shall be prorated based on the implementation
date of the HSA.
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c) Effective on or after January 1, 2014, the Borough shall be permitted
to implement a voluntary employee Wellness Program. The Wellness
Program, if adopted, may afford employees the opportunity to obtain
a reduction of the HSA and/or premium contributions in exchange for
voluntary participation.
d) The adoption of national health insurance legislation may alter certain
provisions of this Article. If any such provision is affected by such
legislation, either party may reopen this Article by serving written
notice upon the other. If the parties have not reached agreement
within 90 days after receipt of such notice, the dispute may be
submitted by either party for final resolution pursuant to
Pennsylvania Act 111 and any other applicable law.
e) Employees shall not be required to pay premium contributions for
2013 and 2014. The issue of health insurance, including premium
contributions by employees, shall be subject to the reopener
described in Paragraph 3 above.
12. Retiree Health Insurance Benefits (Article 25)
a) All officers retiring after the issuance of this Award shall receive
health insurance and prescription drug coverage for the officer,
his/her eligible spouse and dependents through the same plan and
subject to the same employee and other contribution rates in effect
for active employees. This provision is not intended to modify the
eligibility criteria for benefits or the contribution requirements for the
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eligible employee's spouse and dependents as provided in Article 25.A
of the collective bargaining agreement.
b) Any officers hired after the issuance of this Award shall, upon
retirement, be entitled to employee-only health insurance and
prescription drug coverage through the same plan and subject to the
same premium and other contribution rates in effect for active
employees. The officer shall be responsible for the full cost of
coverage for any eligible spouse and dependents.
13.Life Insurance (Article 13)
The post-retirement life insurance benefit shall be eliminated for officers
retiring after the issuance of this Award.
14.Pension Plan (Article 36.1)
Effective upon issuance of this Award, the pension plan shall be modified
to incorporate the changes made by Act 51 of2009.
15. Family and Medical Leave (Article 38)
See Exhibit A attached.
16.Scope of Agreement (Article 42)
The parties agree that any and all side letters of which the parties are
aware have been identified and incorporated in this agreement, including
side letter 2009-1 related to Health Reimbursement Accounts and side
letter 2009-2 relating to Residency. Accordingly, Article 42 shall be
amended to read as follows,
"This Agreement represents and incorporates the complete
and final understanding and settlement by the parties and all
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terms imposed by interest arbitration awards on all negotiable
or bargainable issues which were or could have been the
subject of negotiations and Act 111 interest arbitration
proceedings."
17.Fitness for Duty (Article 44)
See Drug and Alcohol Policy attached as Exhibit B.
18.Short and Long Term Disability Benefits (New Article)
Short Term Disability Benefits: Full time officers, as defined in the
applicable plan document, shall be eligible for short term disability
benefits. In the event an eligible officer becomes ill or is injured in a non-
work related incident and is unable to work, the officer will be eligible to
receive 60 percent of his or her base pay, up to a maximum of $750 per
week, for up to 13 weeks. These benefits shall be available following the
8 th day of disability. The Borough shall pay the full cost of these Short
Term Disability Benefits. It is understood that both the officers and the
Borough are subject to the terms and conditions of the applicable plan
documents.
Officers may elect to purchase additional short term disability
benefits and/or coverage through the carrier via payroll deductions. It is
understood that all such premiums are the officers' responsibility.
Long Term Disability Benefits: The Borough shall make available
optional Long Term Disability Benefits for those full-time officers who
voluntarily elect to purchase such benefits via payroll deduction. Officers
electing to purchase such Benefits shall be responsible for all costs
associated with the Benefits.
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19. Tobacco-Free Policy (New Article)
All employees shall be prohibited from smoking and using any tobacco
products on Borough grounds, in or on Borough property, in Borough
buildings, or in Borough vehicles.
20. Consolidation of Contract
Within 90 days after issuance of this Award, the Borough shall draft a
new collective bargaining agreement reflecting changes in this Award and
previous Act 111 Interest Arbitration Awards, subject to review by the
Association. The Panel shall retain jurisdiction of this matter to resolve
any disputes over the implementation of this Award and the
consolidation of the contract.
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CONCLUSION
All remaining terms and conditions of employment not expressly modified by
this Award or previously agreed to by the parties in negotiations shall remain "as is"
through December 31, 2016. All proposals of the parties not included in the Award
are denied.
It Is understood that the signature of the Arbitrators attest to the fact that the
contractual changes represent the majority opinion and Award on each issue by the
members of the Arbitration Panel.
~ u x
Chairman and Impartial Arbitrator
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AMERICAN ARBITRATION ASSOCIATION
In the Matter of Arbitration Between:
MIDDlETOWN BOROUGH POliCE
OFFICERS ASSOCIATION
and
MIDDlETOWN BOROUGH
AAA Case# 14 360 l1217 12
(Act 1111nterest Arbitration)
Hearing Date: 2/7/13
STATEMENT OF BOROUGH-APPOINTED ARBITRATOR
The Borough-Appointed Arbitrator objects that the foregoing Award fails to adequately
recognize the serious financial circumstances facing the Borough. The financial crisis facing the
Borough is briefly outlined in the opening paragraph of the Award. However, the wage
provisions and the failure to require the officers to make any contributions toward the costs of
their health care premiums are inconsistent with and detrimental to the Borough's tenuous
financial position. Although not a formal dissent for various reasons, the Borough-Appointed
Arbitrator provides this statement for the record.
ADAM SANTUCCI, ESQ.
Borough-Appointed Arbitrator
I
DISSENT and CONCURRING OPINION on behalf of Police:
On behalf of the Middletown Borough Police Association, I respectfully concur and dissent in
part to the award. The basis for the majority of the panel's decision was the Borough's alleged financial
distress. After a thorough review of the Borough financial audits, I cannot agree that the Borough's
financial status warrants a wage or longevity freeze for any period of this contract. As of the time of this
opinion, the 2012 audit has not been filed. Approximately 90 days ago, the Borough finally produced its
2011 audit which reveals the Borough has significantly more cash than it did in the 2010 Audit.
With regard to Article 5 (Wages), I dissent to the extent there is no wage increase in 2013.
concur with Article 5 to the extent there is a wage increase in 2014. The Officers workload has only
increased with the Borough's unilateral decision to eliminate the Communications Department as well
as other management decisions. The increased workload justifies additional wages. I dissent to the
freeze on longevity pay for 2013 and the reduction in the longevity pay for 2014. The overall economic
package does not reflect the economic conditions of the Borough. These officers perform excellent
service on a daily basis for the Borough with an ever increasing workload as a result of the Borough's
decisions.
I have reluctantly concurred to the health insurance provision, Article 21, but dissent as to the
elimination of Article 24 (HRA). While I agree that the officers should not contribute any monies to the
insurance premiums, I would not require any officer contribute any portion of the high deductible. This
result while not optimal is far superior to the Borough's proposal of officer premium sharing.
I dissent to the elimination of Article 24 (HRA). Article 24 provided for the annual
reimbursement of $600 per officer for health care expenses allowable under the Internal Revenue Code.
Article 24 further provided for the $600 annual reimbursement to roll over and accumulate for each
participant until termination of employment. These monies remain in the officer's name and are
reimbursable to the officer for allowable health care expenses both as an active employee and retiree. I
do not believe it is appropriate to remove money that was already earned by an officer, either active or
retired.
I also dissent to Article 4 (Employment Security). The no layoff provision has been in the
Borough for over 20 years. I believe the panel had it within its authority to maintain the prior
contractual language of Article 4 with no significant detrimental consequences for the Borough.
I further dissent to the change in Article 8 (Overtime).
ce Appointed Arbitrator
EXHIBIT A
BOROUGH OF MIDDLETOWN
FAMILY AND MEDICAL LEAVE POLICY
The Borough recognizes that employees from time to time may require a leave of absence
to attend to certain family or medical situations. Pursuant to the Family and Medical
Leave Act ("FMLA"), eligible employees may be entitled to unpaid family or medical
leave pursuant to this policy.
Eligibility
Eligible employees are those who (1) who have been employed by the Borough for at
least 12 months, and (2) have worked at least 1,250 hours during the 12-month period
preceding the leave.
Basic Entitlement
Eligible employees are entitled to a total of up to 12 weeks ofunpaidjob-protected leave
during any 12-month period forthe following reasons:
I. Incapacity due to pregnancy, prenatal medical care or child birth.
2. To care for a newborn child or following the adoption or foster placement of a
child.
3. To provide necessary care for the serious health condition of a spouse, parent,
or minor or disabled child.
4. To care for the employee's own serious health condition that renders the
employee unable to perform his or her job.
5. Any other reason set forth in the FMLA, as amended from time-to-time, or
applicable regulations.
The Borough will calculate the 12-month period by measuring backward from the date an
employee uses FMLA leave (i.e., leave is limited to the balance of 12 weeks not used
during the prior 12 months).
A "serious health condi_tion" is an illness, injury, impairment, or physical or mental
condition that involves either (1) an overnight stay in a medical care facility or (2)
continuing treatment by a health care provider for a condition that either prevents the
employee from performing the functions of his or her job or prevents a qualified family
member from participating in school or other daily activities. Subject to certain
conditions, the continuing treatment requirement may be met by (1) a period of
incapacity of more than three consecutive calendar days combined with at least two visits
to a health care provider or one visit to a health care provider and a regimen of continuing
treatment, (2) incapacity due to pregnancy, or (3) incapacity due to a chronic condition.
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This definition is intended to be consistent with the FMLA, as amended from time-to-
time, and applicable regulations.
Eligible employees are entitled to a total of up to 12 weeks for FMLA-qualifying reasons.
However, in cases where the Borough employs both spouses, they are limited to a
combined total of 12 weeks of FMLA leave because of the birth, adoption, or foster care
placement of a child or to care for a parent with a serious health condition. If the spouses
both use a portion of the totall2-week FMLA leave entitlement for the birth, adoption, or
foster care placement of a child or to care for a parent, each spouse is entitled to the
remaining balance of his/her unused 12-week entitlement for other FMLA-qualifying
purposes.
FMLA leave may be taken all at once or, when medically necessary, on an intermittent or
reduced leave schedule. Intermittent leave is leave taken in separate blocks of time for a
single FMLA-qualifying reason. A reduced leave schedule is a work schedule that
reduces the employee's usual number of working hours per workday or workweek.
Employees will be informed whether they are eligible for intermittent leave or a reduced
leave schedule when they apply for FMLA leave. To the extent possible, intermittent or
reduced schedule leave should be scheduled so as not to disrupt the Borough's
operations.
Military Family Leave Entitlement
Eligible employees with a spouse, son, daughter or parent who is (1) a member of the
regular component of the Armed Forces and deployed to a foreign country, or (2) a
member of the National Guard or Reserves on active duty or called to active duty status
and deployed to a foreign country, may use their 12-week leave entitlement to address
certain qualifying exigencies. Qualifying exigencies may include attending certain
military events, arranging for alternative child care, addressing certain financial and legal
arrangements, attending certain counseling sessions, and attending post-deployment
reintegration briefings. Intermittent leave may be available for qualifying exigency leave.
The FMLA also includes a special leave entitlement that permits eligible employees to
take up to twenty-six (26) weeks of leave to care for a covered servicemember during a
single 12-month period. A covered servicemember is:
1. A current member of the Armed Forces (including a member of the National
Guard or Reserves) who has a serious injury or illness incurred in the line of
duty on active duty (or that existed before the beginning of the member's
active duty and was aggravated by service in the line of duty on active duty)
that renders the servicemember medically unfit to perform his or her duties
and for which the servicemember is (a) undergoing medical treatment,
recuperation or therapy, (b) is in outpatient status, or (c) is on the temporary
disability retired list; or
2. A veteran who was a member of the Armed Forces (including a member of
the National Guard or Reserves) who suffered a serious injury or illness while
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in the line of duty on active duty (or that existed before the beginning of the
member's active duty and was aggravated by service in the line of duty on
active duty) for which the veteran is undergoing medical treatment,
recuperation or therapy, if the veteran was a member of the Armed Forces at
any point during the five years prior to the medical treatment, recuperation or
therapy at issue.
If two spouses both work for the Borough, they are limited to a total of twenty-six (26)
weeks for servicemember family leave and all other FMLA-qualifying reasons in a single
12-month period.
FMLA Procedures
Employees must provide 30 days' advance notice of the need to take FMLA leave when
the need is foreseeable. Advance notice should be provided in writing to the Borough
Manager. When the need for leave is not foreseeable, employees must provide notice as
soon as possible. During leave, employees must keep the Borough informed of the
estimated duration of leave and their intended date to return from leave. Employees also
must make reasonable efforts to work with the Borough to schedule leave for planned
medical treatment so as not to unduly dismpt the Borough's operation. Employees on
approved FMLA leave must fully comply with the Borough's normal leave policies and
call-in procedures. This provision shall not be interpreted to require any action or
forbearance which serves to delay any treatment or procedure recommended by a
licensed medical professional.
Upon requesting FMLA leave, or as otherwise required by the FMLA, eligible employees
will receive a notice of their rights and responsibilities while on FMLA leave. Ineligible
employees will be informed why they are not eligible for FMLA leave.
Eligible employees will also receive a form to complete and submit. If FMLA leave is
taken because of the employee's or his or her family members' serious health condition or
for servicemember family leave, the employee will receive a Certification of Health Care
Provider form to complete and submit before the leave begins or within fifteen ( 15) days
if advance notice has not been provided. The employee must submit sufficient medical
certification within fifteen (15) days of the request for the leave, or the leave may be
denied .. If the medical certification is submitted timely but is incomplete, the employee
will be given a list of the deficiencies and the information needed to correct the
deficiencies. The employee has seven (7) days to correct the deficiencies. Leave can be
denied if the employee does not correct the deficiencies within the seven (7) days. The
employee may request additional time if a delay in submission is for reasons beyond the
employee's control and despite the employee's good faith effort, e.g., the medical
providers are not responsive. Approval of such request shall not be unreasonably
withheld. Employees shall not be required to provide greater information than required
under the Act. Employees may be required to provide periodic recertification supporting
the need for leave. The Borough reserves the right to require second and third opinions at
the Borough's expense relating to a medical certification. Any employee returning to
work from a personal medical leave may be required to submit a fitness-for-duty
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certification from his or her health care provider, stating that he/she is able to resume
work. An employee will not be able to resume his or her duties until the fitness-for-duty
certification fonn, if requested, has been provided.
An employee who requests FMLA leave because his or her spouse, parent or child is
called up for or is on active duty in the Armed Forces will receive an Active Duty
Certification form to complete and submit.
After an employee submits the required certification forms, the Borough will notify the
employee if the leave will be designated as FMLA-protected. If so, the notice will include
the amount of leave counted against the employee's FMLA entitlement. The Borough
also will notify an employee if the leave is not FMLA-protected.
An employee on FMLA leave is prohibited from engaging in other employment during
the period of the leave of absence, unless the employee has previously notified the
Borough of such employment pursuant to Article 34 of the contract and it does not
conflict with the conditions or circumstances under which the employee is eligible for
FMLA leave. Any employee who commits fraud or makes a misrepresentation in
connection with any requested or actual FMLA leave will be subject to disciplinary
action, up to and including discharge.
The foregoing FMLA Procedures are intended to be applied consistent with the FMLA.
Concurrent Use of Leave
The Borough does not require employees to use all of their accrued vacation, sick leave,
and other paid leave concurrently with FMLA leave. After all accrued paid leave is
exhausted, any FMLA leave is unpaid. Employees absent from work and receiving short-
term disability, long-tenn disability, heart and lung act benefits, or workers'
compensation benefits are required to use FMLA leave concurrently. When using paid
leave, employees must comply with the Borough' s paid leave policies. Vacation and sick
leave will NOT accrue during unpaid leave.
Maintenance of Benefits
The Borough will continue to maintain coverage under its benefits plans (i.e. health,
dental, vision, life) for the duration of the FMLA period for employees on FMLA leave.
Dependent premiums and/or employee paid portion of benefit premiums, if applicable,
continue to be the responsibility of the employee on leave. Employees' premiums must be
paid on a monthly basis during FMLA leave. Payment for employee premiums must be
received on the first day of each month. Failure to pay premiums may result in loss of
insurance coverage to employee. The use ofFMLA leave will not result in the loss of any
employment benefit that accmed prior to the start of an employee's leave.
If the employee contributes to a Borough-sponsored life insurance or disability plan, the
Borough will continue making the related payroll deductions while the employee is on
paid leave. While the employee is on unpaid leave, the employee will be responsible for
any such payments. Failure to make such contributions during an unpaid leave period
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may result in the discontinuation of coverage during the leave period, or will recover the
payments at the end of the leave period, in a manner consistent with the law. The
Borough will provide written notice of an employee's obligation.
Reinstatement
The Borough will reinstate employees returning from FMLA leave to their former
position or to a position with equivalent pay rate, benefits, and other terms and conditions
of employment, as required by law.
Upon return to work, employees who took leave due to their own serious health condition
may be required to submit a fitness for duty certification from his or her health care
provider, stating that they are able to perform the essential functions of their position
either with or without reasonable accommodation.
Additional Provisions
The FMLA prohibits employers from interfering with, restrammg, or denying the
exercise of any right provided under the FMLA and from discharging or discriminating
against any person for opposing any practice made unlawfl!l by the FMLA or for
involvement in any proceeding under or relating to the FMLA. An employee may file a
complaint with the U.S. Department of Labor or may bring a private lawsuit against an
employer. for violations of the FMLA. Additional information regarding the FMLA may
be obtained from the U.S. Department of Labor by calling l -866-4US-WAGE. The
FMLA does not affect any Federal or State law prohibiting discrimination or supersede
any State or local law or collective bargaining agreement that provides greater family or
medical leave rights.
This policy will be administered in a manner consistent with the terms of the Family and
Medical Leave Act of 1993, as amended. The Borough reserves the right to impose any
conditions or limitations upon any leave of absence as may be deemed consistent with the
provisions of the Act.
Employees should contact Human Resources for further infonnation about eligibility for
FMLA leave and the required procedures
NON-FMLA AND NON-MILITARY LEA YES OF ABSENCE
The Borough recognizes that employees from time to time may require a leave of absence
for personal reasons that are not covered under the FMLA or other contractual paid leave
time, where the employee is not eligible for FMLA leave, or if the need for leave extends
beyond the FMLA 12-week entitlement. Depending upon all the circumstances, including
but not limited to the Borough's operational needs, the employee's job performance and
seniority, and the reason for needing time off, an unpaid leave of absence for a limited
period may be granted.
To permit advance planning by the Borough, any request for a leave of absence must be
submitted as soon as the employee's need for future leave becomes apparent. This request
17
must be in writing and must set forth the anticipated length of the absence, with the date
of the requested leave and the circumstances that prompted the request. The request
should also include any supporting documentation requested by the Borough. A leave of
absence approved by the Borough will not be extended beyond the date of the initial
written request without further written request and approval.
If an employee's request for a leave of absence is granted by the Borough, the employee
may continue health insurance coverage. During the first thirty (30) days of unpaid leave,
the employee is only responsible for the employee's share of insurance premiums, if
applicable. Following the first thirty (30) days of unpaid leave, the employee may elect
continued coverage by paying the full premium cost in advance. Failure to timely pay
premiums may result in a loss of coverage. All other benefits and benefit accmals will
cease upon the beginning of unpaid leave under this policy.
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EXHIBIT B
BOROUGH OF MIDDLETOWN
EMPLOYEE DRUG AND ALCOHOL POLICY
I. PURPOSE
In order to protect the safety of Borough employees and the public at-large and to
maintain a safe and productive working environment, the Borough endeavors to ensure
that its employees are free from the influence of alcohol, illegal drugs, and controlled
substances while perfonning Borough business. Accordingly, the Borough has adopted
and implemented the Alcohol/Drug Testing Program as agreed upon by the parties and
outlined below.
II . POLICY
This policy applies to all Borough employees. Under this policy, the following
conduct is strictly prohibited:
The possession, use, purchase, sale, or transfer any amount of an illegal drug
or illegal substance on Borough property (including parking lots) or in
Borough vehicles (either owned by or leased to the Borough).
The use, purchase or sale of alcohol on Borough property (including parking
lots and unless such use is specifically permitted on Borough property during
non-working hours) or in Borough vehicles (either owned by or leased to the
Borough).
The consumption or use of alcohol or illegal drugs or illegal substances on or
off Borough property during working hours, lunch periods, or break or relief
periods.
Reporting to work, being present on Borough property, or conducting
Borough business while under the influence of alcohol. "Under the influence
of alcohol" for purposes of this policy means that the employee has a blood
alcohol content of .04 or greater.
• Reporting to work, being present on Borough property, or conducting
Borough business "under the influence" of illegal drugs or illegal substances.
"Under the influence" with respect to illegal drugs or illegal substances means
that the employee is affected by illegal drugs or illegal substances in any
detectable manner, or has the requisite amount of such illegal drug or
substance in his/her system to cause a positive result on a drug test. This may
be established through professional opinion, a scientifically valid test, or, in
some cases, by observation of impairment of physical or mental ability, such
as slurring of speech, difficulty in maintaining balance, etc. and later
confirmed by a scien-tifically valid test.
• Bringing drug paraphernalia onto Borough property (including parking lots) at
any time.
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• The conviction under any criminal dmg statute for a violation occurring in the
workplace, during work time, or during non-work time.
• Refusing to submit to any alcohol or dmg test conducted and required to be
taken under this Policy.
For purposes of this policy, illegal dmgs and illegal substances are those which
cannot be legally obtained, including controlled dangerous substances and controlled
substance analogs, as well as those drugs which although legal have been illegally
obtained (i.e., prescribed dmgs not being used for prescribed purposes, including
amphetamines and barbiturates). Examples of illegal drugs include marijuana, cocaine,
"crack", heroin, morphine, phencyclidine (PCP), hallucinogens, methamphetamine, and
narcotics, etc.
Nothing m this policy shall prohibit the possession or use of controlled
substances, alcohol or illegal drugs if it is required in the course of the employee's
official duties, as approved by the Chief or his designee.
The Borough recognizes that some employees must use prescription or over-the-
counter dmgs for valid medical purposes. Nothing in this policy shall prohibit the use (as
prescribed) or possession of medications prescribed by an employee's physician. Any
employee taking a prescription or over-the-counter dmg that is known or advertised as
possibly affecting or impairing judgment, coordination or other senses (including
dizziness or drowsiness), or that may adversely affect the employee's physical or mental
ability to perform work in a safe and productive manner must obtain certification from
the prescribing physician or a pharmacist that the dmg will not interfere with safe and
productive job perfonnance. This certification should not be provided to the Borough,
except upon reasonable request. If the physician or pharmacist suggests work
restrictions, those restrictions must immediately be made known to the Borough.
Ill. DRUG AND ALCOHOL TESTING
A. The Borough will conduct drug and/or alcohol testing only under the
following circumstances:
• Pre-employment testing;
• Post-accident/incident testing;
• Reasonable suspicion testing;
• Return-to-duty testing; and
• Follow-up testing.
1. Pre-Employment Testing
The Borough shall require applicants for employment to submit to drug tests.
Typically, pre-employment alcohol testing will not be conducted.
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2. Post-Accident/Incident Testing
Any employee involved in a work site or work-related accident or incident must
submit to a drug and alcohol test, if the accident/incident (1) requires the employee or
another to receive professional care at an off-site medical facility, (2) results in
significant property damage or lost time, or (3) involves a motor vehicle accident in a
Borough owned, leased, or rented vehicle or while on Borough business. Employees
involved in such accidents must make themselves immediately available for post-accident
testing and may not leave the facility or site for any reason prior to testing, without the
specific approval of their immediate supervisor. Employees required to take post-
accident alcohol testing are prohibited from using alcohol prior to the test. Post-accident
testing will be performed as soon as possible after an accident.
In the event that federal, state, or local officials, following an accident, conduct
tests for the use of alcohol and/or drugs, these tests will be considered to meet the
requirements of this Policy. In such instance, the employee must allow the Borough to
obtain the test results, and failure to do so will be deemed a "Refusal to Test" as outlined
below. In the event that an employee is so seriously injured that he/she cannot provide a
specimen at the time of the accident, the employee must provide necessary authorization
to the Borough to obtain hospital records or other documents that may indicate whether
drugs or alcohol were present in the employee's system at the time of the accident, and
failure to do so will be deemed a "Refusal to Test" as outlined below.
3. Reasonable Suspicion Testing
Where the Borough has a reasonable suspicion that an employee is under the
influence of alcohol, illegal drugs, and/or illegal substances while on Borough property or
performing Borough business, the Borough will require the employee to submit to drug
and/or alcohol testing.
"Reasonable suspicion" may exist in a variety of circumstances, including but not
limited to (1) where an employee manifests physical or behavioral symptoms commonly
attributed to the use of alcohol, illegal drugs, or controlled substances, including
symptoms that manifest through the employee's conduct, appearance, speech, or odor, or
(2) the Borough otherwise receives reliable information indicating that an employee may
be under the influence of alcohol, illegal drugs, or controlled substances. Reasonable
suspicion will be determined at the discretion of the Borough.
In cases in which an employee is acting in an abnormal manner and at least one non-
bargaining unit supervisor has reasonable suspicion to believe that the employee is under
the influence of alcohol, illegal drugs, or illegal substances, the Borough may require the
employee, in the presence of a union representative, to undergo testing. Testing will not
be unreasonably delayed if a union representative is not available to be present.
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4. Return to Duty Testing
When an employee is absent for a period of time greater than 30 days, the
employee may be required to submit to return-to-duty drug and/or alcohol testing before
being returned to work.
5. Follow Up Testing
Following a determination that an employee is in need of assistance in resolving
problems associated with alcohol misuse and/or use of drugs, the employee may be
required to submit to unannounced follow-up testing.
B. Testing Procedures
When an employee is required to undergo a drug and/or alcohol test, the test will
be conducted pursuant to the following procedures.
1. Collection and Authorization of Release of Results
The employee will be directed to a hospital or medical clinic to provide urine
and/or blood specimens for testing by an independent laboratory. In appropriate
circumstances, the employee will be transported to the hospital or medical clinic by a
Borough representative. The employee will be permitted to have a Union representative
present upon the employee's request. Testing will not be unreasonably delayed if a union
representative is not available to be present.
The employee will sign any required consent or authorization forms authorizing the
hospital, medical clinic, or laboratory to release directly to the Borough the results of the
drug and/or alcohol testing. In no instance will the employee be required to waive any
claim or cause of action arising from the collection or testing process. All appropriate
steps will be taken by the medical clinic, or other collection facility, and the testing
laboratory to ensure the integrity of the employee's urine and blood specimens.
2. Testing
After collection, the urine and blood specimens will be subject to laboratory testing at
an appropriate laboratory and in accordance with appropriate standards. The employee
has the right to request· that both blood and urine be tested. All samples will be separated
into two containers for the purpose of making a primary testing sample and a secondary
storage sample. The secondary storage sample can be used for the purpose of independent
testing by the employee. Positive results will be discussed with employee by a medical
reviewing officer (who is not an employee of the Borough). Any employee with a
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positive test result shall be given the opportunity to explain to the medical reviewing
officer any circumstances that may have led to the positive result.
The laboratory will report to the Borough and the employee all positive findings
for alcohol, illegal drugs, and controlled substances. The laboratory will also report
significant presence of prescription and non-prescription medications.
C. "Positive" Tests
The following results constitute a "positive" test for purposes of the Borough's
drug/alcohol testing policy: any detectable quantum of proof of illegal drugs and illegal
substances (as defined above) in the blood or urine; and blood alcohol concentrations
equal to or in excess of .04.
D. Refusal to Test
Refusal to submit to a drug and/or alcohol test as provided for in this policy will be
grounds for discipline, up to and including termination of employment. A "refusal to
test" includes any conduct that would obstruct the proper administration of a drug and/or
alcohol test, including refusal to provide a urine or blood sample, unreasonable delay in
providing a urine or blood sample, or attempting to dilute or tamper with a urine or blood
sample.
IV. Disciplinary Action
An employee who has violated this policy shall be subject to discipline, up to and
including termination of employment.
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