2013 Middletown Police Department Arbitration Award

7/29/2019 2013 Middletown Police Department Arbitration Award

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AMERICAN ARBITRATION ASSOCIATION

In the Matter ofArbitration Between:

MIDDLETOWN BOROUGH POLICEOFFICERS ASSOCIATION AAA Case#14 360 L121712(Act 111 Interest Arbitration)

andMIDDLETOWN BOROUGH Hearing Date: 2/7/13

Panel of ArbitratorsJason M. Weinstock, Esquire

IRA H. W E I N S T O C ~ P.C.Police-Appointed ArbitratorAdam Santucci, Esquire

McNEES WALLACE & NURICK LLCBorough-Appointed Arbitrator

Walt De Treux, EsquireImpartial Arbitrator and Panel Chair

FOREWARD

The undersigned arbitrators were duly appointed as the Board of Arbitrationpursuant to the provisions of Section 4(b) of the Act of June 24, 1968, P.L. 237, asamended. 43 P.S. 217.4(b) (Act 111) and the procedures of the Philadelphia Officeof the American Arbitra tion Association. The Board acknowledges that the partiesagreed to waive the time limits under Act 111. A hearing in this matter wasconducted 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 insupport of their respective positions.

In reviewing the evidence, a majority of the Panel have concluded that theBorough is experiencing serious financial circumstances. The Borough has had astructural deficit in the General Fund since at least 1998, which is covered byrevenue from its electrical operations. In 2012, it had an operational deficit of morethan $2.7 million. Its revenues have fallen as its costs have increased. Further, it iscarrying several million dollars in unfunded pension and other post-employmentbenefi ts liability.

The financial situation has led the Borough to consider declaring distressedmunicipality status under Act 47. In August 2012, the Commonwealth ofPennsylvania Department of Community and Economic Development approved theBorough's application for participation in its Early Intervention Program, which hasprovided funding for the Borough to develop a five-year financial management planto address its fiscal situation. Creation and implementation of the EIP will hopefullylead the Borough away from the drastic step of invoking Act 4 7 status.

At the same time, the officers covered by this collective bargainingagreement have seen their workload increase as the number of full-time officers hasdecreased. It cannot be seriously disputed that they earn each dollar they make andevery benefit to which they are entitled.

In reaching the following Award, the Panel has attempted to balance theBorough's financial concerns with the need to appropriately compensate thebargaining 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 theircompensation 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 isachieving fiscal stability.

With those concerns inmind and following Executive Sessions of the Boardof Arbitration, the following Award was adopted by a majority of the Board.

AWARD

1. TermThe term of the agreement shall be for four ( 4) years, commencingJanuary 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-mandatorysubject of bargaining over which the Borough has no t 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 eventof layoff, officers shall be laid off in reverse order ofseniority. Laid off officers shall be recalled according toseniority. An officer shall have recall rights for a period oftwenty-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 increasedaccording to the following schedule:

Effective January 1, 20 14 ............................2%Effective July 1, 2014 ................................... 1o/o

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There shall be a "reopener" of the wage provision for Years 3 (2015) and4 (2016). If the parties are unable to agree to terms of the reopener byDecember 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 of1% of base salary, payable on their anniversary date in accordance withArticle 6. (For 2014 only, the formula for calculating longevity ismodified to exclude the number of years of service as multiplier.) Thereshall be no longevity payment for 2013. Longevity payments in 2015 and2016 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 thediscretion of the Chief of Police. In the event that a shift vacancy becomesavailable with less than seven (7) days' notice, and the Chief determinesthat there is a need to fill the shift vacancy, the Chief will utilize a ro tatingseniority list. It is understood that the rotating seniori ty list will includeboth 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 shiftvacancy, the next most senior officer shall be offered the opportunity. Ifan officer declines an opportunity, he shall not again be eligible for anopportunity until all other officers shall have been afforded anopportunity 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 atthe overtime rate, provided the hours worked are in excess of eight(8) hours per day or forty ( 40) hours per work week as provided inArticle 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 deathoccurs in the employee's immediate family.2. For purposes ofthis section, immediate family shall be defined asparent, 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 theBorough shall be entit led to one (1) day off with pay for the death ofan aunt or uncle or spouse's grandparent.4. An employee shall receive his regular rate of pay, including anyapplicable shift differential, for each day of bereavement leave.5. One (1) additional day shall be granted if the employee must travelover 100 miles, one way, to the site of the funeral.6. This Article is intended for the purpose of supplementing pay that anemployee may lose and is not intended as extra pay for days anemployee 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 offive (5) personal days. Article 17 shall be amended to reflect theincreased number of personal days.

b) The provision granting a compensatory day off for officers workingIndependence Day, Thanksgiving Day or Christmas Day shall bedeleted.

c) The filling of any shift vacancy or overtime opportunity on holidaysshall 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 orafter the issuance of this Award shall not be paid for any unusedaccumulated sick leave upon separation or retirement from theDepartment. Officers hired on or after the issuance of this Award will no tbe compensated for all accumulated, unused leave over 120 days at theend 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 eachofficer, a Health Savings Account (HSA), replacing the HRA providedfor 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 thatthe Borough shall have the right to change carriers as long as

comparable coverage is maintained. The HSA will be administered bya third party who will reimburse the officer upon receiving thereceipt. The health insurance plan provides for 100% coverage afterthe high deductible is met. The HSA shall be governed by applicableInternal 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 wh o elect anycoverage 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 HSAcontributions shall be prorated for officers an d the Borough and shallbe made each pay period. Officers HSA contributions shall be madevia payroll deduction. These annual HSA contributions will remain ineffect each year of the agreement, unless modified by mutualagreement of the parties. Funds remaining in the HSA at the end ofcalendar year shall rollover and accumulate for each participant until

termination of employment. It is understood that the annualcontributions for 2013 shall be prorated based on the implementationdate of the HSA.

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c) Effective on or after January 1, 2014, the Borough shall be permittedto implement a voluntary employee Wellness Program. The Wellness

Program, if adopted, may afford employees the opportunity to obtaina reduction of the HSA and/or premium contributions in exchange forvoluntary participation.

d) The adoption of national health insurance legislation may alter certainprovisions of this Article. Ifany such provision is affected by suchlegislation, either party may reopen this Article by serving writtennotice upon the other. If the parties have not reached agreementwithin 90 days after receipt of such notice, the dispute may besubmitted by either party for final resolution pursuant toPennsylvania Act 111 and any other applicable law.

e) Employees shall not be required to pay premium contributions for2013 and 2014. The issue of health insurance, including premiumcontributions by employees, shall be subject to the reopenerdescribed 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 prescrip tion drug coverage for the officer,his/her eligible spouse and dependents through the same plan andsubject to the same employee and other contribution rates in effectfor active employees. This provision is not intended to modify theeligibility criteria for benefits or the contribution requirements for the

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eligible employee's spouse and dependents as provided in Article 25.Aof the collective bargaining agreement .

b) Any officers hired after the issuance of this Award shall, uponretirement, be entitled to employee-only health insurance andprescription drug coverage through the same plan and subjec t to thesame premium and other contribution rates in effect for activeemployees. The officer shall be responsible for the full cost ofcoverage for any eligible spouse and dependents.

13.Life Insurance (Article 13)The post-retirement life insurance benefit shall be eliminated for officersretiring after the issuance of this Award.

14.Pension Plan (Article 36.1)Effective upon issuance of this Award, the pension plan shall be modifiedto incorporate the changes made by Act 51 of2009.

15. Family and Medical Leave (Article 38)See Exhibit A attached.

16.Scope ofAgreement (Article 42)The parties agree that any and all side letters of which the parties areaware have been identified and incorporated in this agreement, includingside letter 2009-1 related to Health Reimbursement Accounts and sideletter 2009-2 relating to Residency. Accordingly, Article 42 shall beamended to read as follows,

"This Agreement represen ts and incorporates the completeand final understanding and settlement by the parties and all

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terms imposed by interest arbitration awards on all negotiableor bargainable issues which were or could have been thesubject of negotiations and Act 111 interest arbitrationproceedings."

17.Fitness for Duty (Article 44 )See Drug and Alcohol Policy attached as Exhibit B.

18.Short and Long Term Disabi lity Benefits (New Article)Short Term Disability Benefits: Full time officers, as defined in theapplicable plan document , shall be eligible for short term disabilitybenefits. In the event an eligible officer becomes il l or is injured in a non-work related incident and is unable to work, the officer will be eligible toreceive 60 percent of his or he r base pay, up to a maximum of $750 pe rweek, for up to 13 weeks. These benefits shall be available following the8 th day of disability. The Borough shall pay the full cost of these ShortTerm Disability Benefits. It is understood that both the officers and theBorough are subject to the terms and conditions of the applicable plandocuments.

Officers may elect to purchase additional short term disabilitybenefits and/or coverage through the carrier via payroll deductions. It isunderstood that all such premiums are the officers' responsibility.Long Term Disability Benefits: The Borough shall make availableoptional Long Term Disability Benefits for those full-time officers whovoluntarily elect to purchase such benef its via payroll deduction. Officerselecting to purchase such Benefits shall be responsible for all costsassociated 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 Boroughbuildings, or in Borough vehicles.

20. Consolidation of ContractWithin 90 days after issuance of this Award, the Borough shall draft anew collective bargaining agreement reflecting changes in this Award andprevious Act 111 Interest Arbitration Awards, subject to review by theAssociation. The Panel shall retain jurisdiction of this matter to resolveany disputes over the implementation of this Award and theconsolidation of the contract.

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CONCLUSIONAll remaining terms and conditions of employment not expressly modified by

this Award or previously agreed to by the part ies in negotiations shall remain "as is"through December 31, 2016. All proposals of the parties not included in the Awardare denied.

It Is understood that the signature of the Arbitrators attest to the fact that thecontractual changes represent the majori ty opinion and Award on each issue by themembers of the Arbitration Panel.

~ u xhairman and Impartial Arbitra tor

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AMERICAN ARBITRATION ASSOCIATION

In the Matter ofArbitration Between:

MIDDlETOWN BOROUGH POliCEOFFICERS 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 adequatelyrecognize the serious financial circumstances facing the Borough. The financial crisis facing theBorough is briefly outlined in the opening paragraph of the Award . However, the wageprovisions and the failure to require the officers to make any contributions toward the costs oftheir health care premiums are inconsistent with and detrimental to the Borough's tenuousfinancial position . Although not a formal dissent fo r various reasons, the Borough-AppointedArbitrator provides this statement for the record.

ADAM SANTUCCI, ESQ.Borough-Appointed Arbitrator


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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 financialdistress. Afte r a thorough review of the Borough financial audits, I cannot agree that the Borough'sfinancial status warrants a wage or longevity freeze for any period of this contract. As of the time of thisopinion, the 2012 audit has not been filed . Approximately 90 days ago, the Borough finally produced its2011 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 onlyincreased with the Borough's unilateral decision to eliminate the Communications Department as wellas other management decisions. The increased workload justifies additional wages. I dissent to thefreeze on longevity pay for 2013 and the reduction in the longevity pay fo r 2014. The overall economicpackage does not reflect the economic conditions of the Borough. These officers perform excellentservice on a daily basis for the Borough with an ever increasing workload as a result of the Borough'sdecisions.

I have reluctantly concurred to the health insurance provision, Article 21, but dissent as to theelimination of Article 24 (HRA). While I agree that the officers should not contribute any monies to theinsurance premiums, I would not require any officer contribute any portion of the high deductible. Thisresult 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 annualreimbursement 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 eachparticipant until termination of employment. These monies remain in the officer's name and arereimbursable to the officer for allowable health care expenses both as an active employee and retiree. Ido not believe it is appropriate to remove money that was already earned by an officer, ei ther active orretired .

I also dissent to Article 4 (Employment Security). The no layoff provision has been in theBorough for over 20 years. I believe the panel had it within its au thor ity to maintain the priorcontractual 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


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EXHIBIT ABOROUGH OF MIDDLETOWN

FAMILY AND MEDICAL LEAVE POLICYThe Borough recognizes that employees from time to time may require a leave of absenceto attend to certain family or medical situations. Pursuant to the Family and MedicalLeave Act ("FMLA"), eligible employees may be entitled to unpaid family or medicalleave pursuant to this policy.EligibilityEligible employees are those who (1) who have been employed by the Borough for atleast 12 months, and (2) have worked at least 1,250 hours during the 12-month periodpreceding the leave.Basic EntitlementEligible employees are entitled to a total of up to 12 weeks ofunpaidjob-protected leaveduring 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 achild.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 theemployee unable to perform his or her job.5. Any other reason set forth in the FMLA, as amended from time-to-time, orapplicable regulations.

The Borough will calculate the 12-month period by measuring backward from the date anemployee uses FMLA leave (i.e., leave is limited to the balance of 12 weeks not usedduring the prior 12 months).A "serious health condi_ion" is an illness, injury, impairment, or physical or mentalcondition 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 theemployee from performing the functions of his or her job or prevents a qualified familymember from participating in school or other daily activities. Subject to certainconditions, the continuing treatment requirement may be met by (1) a period ofincapacity of more than three consecutive calendar days combined with at least two visitsto a health care provider or one visit to a health care provider and a regimen of continuingtreatment, (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-totime, 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 acombined total of 12 weeks of FMLA leave because of the birth, adoption, or foster careplacement of a child or to care for a parent with a serious health condition . If the spousesboth use a portion of the totall2-week FMLA leave entitlement for the birth, adoption, orfoster care placement of a child or to care for a parent, each spouse is entitled to theremaining balance of his/her unused 12 -week entitlement for other FMLA-qualifyingpurposes.FMLA leave may be taken all at once or, when medically necessary, on an intermittent orreduced leave schedule. Intermittent leave is leave taken in separate blocks of time for asingle FMLA-qualifying reason. A reduced leave schedule is a work schedule thatreduces 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 reducedleave schedule when they apply for FMLA leave. To the extent possible, intermittent orreduced schedule leave should be scheduled so as not to disrupt the Borough'soperations .Military Family Leave EntitlementEligible employees with a spouse, son, daughter or parent who is (1) a member of theregular component of the Armed Forces and deployed to a foreign country, or (2) amember of the National Guard or Reserves on active duty or called to active duty statusand deployed to a foreign country, may use their 12-week leave entitlement to addresscertain qualifying exigencies. Qualifying exigencies may include attending certainmilitary events, arranging for alternative child care, addressing certain financial and legalarrangements, attending certain counseling sessions, and attending post-deploymentreintegration briefings. Intermittent leave may be available for qualifying exigency leave.The FMLA also includes a special leave entitlement that permits eligible employees totake up to twenty-six (26) weeks of leave to care for a covered servicemember during asingle 12-month period. A covered servicemember is:

1. A current member of the Armed Forces (including a member of the NationalGuard or Reserves) who has a serious injury or illness incurred in the line ofduty on active duty (or that existed before the beginning of the member'sactive 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 dutiesand for which the servicemember is (a) undergoing medical treatment,recuperation or therapy, (b) is in outpatient status, or (c) is on the temporarydisability retired list; or

2. A veteran who was a member of the Armed Forces (including a member ofthe 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 themember's active duty and was aggravated by service in the line of duty onactive duty) for which the veteran is undergoing medical treatment,recuperation or therapy, if the veteran was a member of the Armed Forces atany point during the five years prior to the medical treatment, recuperation ortherapy 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 single12-month period.FMLA ProceduresEmployees must provide 30 days' advance notice of the need to take FMLA leave whenthe need is foreseeable . Advance notice should be provided in writing to the BoroughManager. When the need for leave is not foreseeable, employees must provide notice assoon as possible. During leave, employees must keep the Borough informed of theestimated duration of leave and their intended date to return from leave. Employees alsomust make reasonable efforts to work with the Borough to schedule leave for plannedmedical treatment so as not to unduly dismpt the Borough's operation. Employees onapproved FMLA leave must fully comply with the Borough's normal leave policies andcall-in procedures. This provision shall not be interpreted to require any action orforbearance which serves to delay any treatment or procedure recommended by alicensed medical professional.Upon requesting FMLA leave, or as otherwise required by the FMLA, eligible employeeswill receive a notice of their rights and responsibilities while on FMLA leave. Ineligibleemployees 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 istaken because of the employee's or his or her family members' serious health condition orfor servicemember family leave, the employee will receive a Certification of Health CareProvider form to complete and submit before the leave begins or within fifteen ( 15) daysif advance notice has not been provided. The employee must submit sufficient medicalcertification within fifteen (15) days of the request for the leave, or the leave may bedenied . If the medical certification is submitted timely but is incomplete, the employeewill be given a list of the deficiencies and the information needed to correct thedeficiencies. The employee has seven (7) days to correct the deficiencies. Leave can bedenied if the employee does not correct the deficiencies within the seven (7) days. Theemployee may request additional time if a delay in submission is for reasons beyond theemployee's control and despite the employee's good faith effort, e.g., the medicalproviders are not responsive. Approval of such request shall not be unreasonablywithheld. Employees shall not be required to provide greater information than requiredunder the Act. Employees may be required to provide periodic recertification supportingthe need for leave. The Borough reserves the right to require second and third opinions atthe Borough's expense relating to a medical certification. Any employee returning towork 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 resumework. An employee will not be able to resume his or her duties until the fitness-for-dutycertification fonn, if requested, has been provided.An employee who requests FMLA leave because his or her spouse, parent or child iscalled up for or is on active duty in the Armed Forces will receive an Active DutyCertification form to complete and submit.After an employee submits the required certification forms, the Borough will notify theemployee if the leave will be designated as FMLA-protected. If so, the notice will includethe amount of leave counted against the employee's FMLA entitlement. The Boroughalso will notify an employee if the leave is not FMLA-protected.An employee on FMLA leave is prohibited from engaging in other employment duringthe period of the leave of absence, unless the employee has previously notified theBorough of such employment pursuant to Article 34 of the contract and it does notconflict with the conditions or circumstances under which the employee is eligible forFMLA leave. Any employee who commits fraud or makes a misrepresentation inconnection with any requested or actual FMLA leave will be subject to disciplinaryaction, up to and including discharge.The foregoing FMLA Procedures are intended to be applied consistent with the FMLA.Concurrent Use of LeaveThe 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 isexhausted, any FMLA leave is unpaid. Employees absent from work and receiving shortterm disability, long-tenn disability, heart and lung act benefits, or workers'compensation benefits are required to use FMLA leave concurrently. When using paidleave, employees must comply with the Borough ' s paid leave policies. Vacation and sickleave will NOT accrue during unpaid leave.Maintenance of BenefitsThe 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 bepaid on a monthly basis during FMLA leave. Payment for employee premiums must bereceived on the first day of each month. Failure to pay premiums may result in loss ofinsurance coverage to employee. The use ofFMLA leave will not result in the loss of anyemployment 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, theBorough will continue making the related payroll deductions while the employee is onpaid leave. While the employee is on unpaid leave, the employee will be responsible forany 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 thepayments at the end of the leave period, in a manner consistent with the law. TheBorough will provide written notice of an employee's obligation.ReinstatementThe Borough will reinstate employees returning from FMLA leave to their formerposition or to a position with equivalent pay rate, benefits, and other terms and conditionsof employment, as required by law.Upon return to work, employees who took leave due to their own serious health conditionmay be required to submit a fitness for duty certification from his or her health careprovider, stating that they are able to perform the essential functions of their positioneither with or without reasonable accommodation.

Additional ProvisionsThe FMLA prohibits employers from interfering with, restrammg, or denying theexercise of any right provided under the FMLA and from discharging or discriminatingagainst any person for opposing any practice made unlawfl!l by the FMLA or forinvolvement in any proceeding under or relating to the FMLA. An employee may file acomplaint with the U.S. Department of Labor or may bring a private lawsuit against anemployer. for violations of the FMLA. Additional information regarding the FMLA maybe obtained from the U.S. Department of Labor by calling l -866-4US -WAGE. TheFMLA does not affect any Federal or State law prohibiting discrimination or supersedeany State or local law or collective bargaining agreement that provides greater family ormedical leave rights.This policy will be administered in a manner consistent with the terms of the Family andMedical Leave Act of 1993, as amended. The Borough reserves the right to impose anyconditions or limitations upon any leave of absence as may be deemed consistent with theprovisions of the Act.Employees should contact Human Resources for further infonnation about eligibility forFMLA leave and the required proceduresNON-FMLA AND NON-MILITARY LEAYES OF ABSENCEThe Borough recognizes that employees from time to time may require a leave of absencefor personal reasons that are not covered under the FMLA or other contractual paid leavetime, where the employee is not eligible for FMLA leave, or if the need for leave extendsbeyond the FMLA 12-week entitlement. Depending upon all the circumstances, includingbut not limited to the Borough's operational needs, the employee's job performance andseniority, and the reason for needing time off, an unpaid leave of absence for a limitedperiod may be granted.To permit advance planning by the Borough, any request for a leave of absence must besubmitted as soon as the employee's need for future leave becomes apparent. This request

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must be in writing and must set forth the anticipated length of the absence, with the dateof the requested leave and the circumstances that prompted the request. The requestshould also include any supporting documentation requested by the Borough. A leaveofabsence approved by the Borough will not be extended beyond the date of the initialwritten request without further written request and approval.If an employee's request for a leave of absence is granted by the Borough, the employeemay continue health insurance coverage. During the first thirty (30) daysof unpaid leave,the employee is only responsible for the employee's share of insurance premiums, ifapplicable. Following the first thirty (30) days of unpaid leave, the employee may electcontinued coverage by paying the full premium cost in advance. Failure to timely paypremiums may result in a loss of coverage. All other benefits and benefit accmals willcease upon the beginning of unpaid leave under this policy.

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EXHIBIT B

BOROUGH OF MIDDLETOWNEMPLOYEE DRUG AND ALCOHOL POLICY

I. PURPOSEIn 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 ensurethat its employees are free from the influence of alcohol, illegal drugs, and controlledsubstances while perfonning Borough business. Accordingly, the Borough has adoptedand implemented the Alcohol/Drug Testing Program as agreed upon by the parties andoutlined below.

II. POLICYThis policy applies to all Borough employees. Under this policy, the followingconduct is strictly prohibited:

The possession, use, purchase, sale, or transfer any amountof an illegal drugor illegal substance on Borough property (including parking lots) or inBorough vehicles (either owned by or leased to the Borough).The use, purchase or sale of alcohol on Borough property (including parkinglots and unless such use is specifically permitted on Borough property duringnon-working hours) or in Borough vehicles (either owned by or leased to theBorough).The consumption or use of alcohol or illegal drugs or illegal substances on orof f Borough property during working hours, lunch periods, or break or reliefperiods.Reporting to work, being present on Borough property, or conductingBorough business while under the influenceof alcohol. "Under the influenceof alcohol" for purposes of this policy means that the employee has a bloodalcohol content of .04 or greater.

Reporting to work, being present on Borough property, or conductingBorough business "under the influence" of illegal drugs or illegal substances."Under the influence" with respect to illegal drugs or illegal substances meansthat the employee is affected by illegal drugs or illegal substances in anydetectable manner, or has the requisite amount of such illegal drug orsubstance in his/her system to cause a positive result on a drug test. This maybe established through professional opinion, a scientifically valid test, or, insome cases, by observation of impairment of physical or mental ability, suchas slurring of speech, difficulty in maintaining balance, etc. and laterconfirmed by a scien-ifically valid test.

Bringing drug paraphernalia onto Borough property (including parking lots) atany time.

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The conviction under any criminal dmg statute for a violation occurring in theworkplace, during work time, or during non-work time.

Refusing to submit to any alcohol or dmg test conducted and required to betaken under this Policy.

Fo r purposes of this policy, illegal dmgs and illegal substances are those whichcannot be legally obtained, including controlled dangerous substances and controlledsubstance analogs, as well as those drugs which although legal have been illegallyobtained (i.e., prescribed dmgs not being used for prescribed purposes, includingamphetamines and barbiturates). Examples of illegal drugs include marijuana, cocaine,"crack", heroin, morphine, phencyclidine (PCP), hallucinogens, methamphetamine, andnarcotics, etc.

Nothing m this policy shall prohibit the possession or use of controlledsubstances, alcohol or illegal drugs if it is required in the course of the employee'sofficial duties, as approved by the Chief or his designee.

The Borough recognizes that some employees must use prescription or over-thecounter dmgs for valid medical purposes . Nothing in this policy shall prohibit the use (asprescribed) or possession of medications prescribed by an employee's physician. Anyemployee taking a prescription or over-the-counter dmg that is known or advertised aspossibly affecting or impairing judgment, coordination or other senses (includingdizziness or drowsiness), or that may adversely affect the employee's physical or mentalability to perform work in a safe and productive manner must obtain certification fromthe prescribing physician or a pharmacist that the dmg will not interfere with safe andproductive job perfonnance. This certification should not be provided to the Borough,except upon reasonable request. If the physician or pharmacist suggests workrestrictions, those restrictions must immediately be made known to the Borough.

Ill. DRUG AND ALCOHOL TESTINGA. 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 TestingThe 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 TestingAny 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 oranother to receive professional care at an off-site medical facility, (2) results insignificant property damage or lost time, or (3) involves a motor vehicle accident in aBorough owned, leased, or rented vehicle or while on Borough business. Employeesinvolved in such accidents must make themselves immediately available for post-accidenttesting and may not leave the facility or site for any reason prior to testing, without thespecific approval of their immediate supervisor. Employees required to take postaccident alcohol testing are prohibited from using alcohol prior to the test. Post-accidenttesting will be performed as soon as possible after an accident.

In the event that federal, state, or local officials, following an accident, conducttests for the use of alcohol and/or drugs, these tests will be considered to meet therequirements of this Policy. In such instance, the employee must allow the Borough toobtain the test results, and failure to do so will be deemed a "Refusal to Test" as outlinedbelow. In the event that an employee is so seriously injured that he/she cannot provide aspecimen at the time of the accident, the employee must provide necessary authorizationto the Borough to obtain hospital records or other documents that may indicate whetherdrugs or alcohol were present in the employee's system at the time of the accident, andfailure to do so will be deemed a "Refusal to Test" as outlined below.

3. Reasonable Suspicion TestingWhere 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 orperforming Borough business, the Borough will require the employee to submit to drugand/or alcohol testing.

"Reasonable suspicion" may exist in a variety of circumstances, including but notlimited to (1) where an employee manifests physical or behavioral symptoms commonlyattributed to the use of alcohol, illegal drugs, or controlled substances, includingsymptoms that manifest through the employee's conduct, appearance, speech, or odor, or(2) the Borough otherwise receives reliable information indicating that an employee maybe under the influence of alcohol, illegal drugs, or controlled substances. Reasonablesuspicion 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 nonbargaining unit supervisor has reasonable suspicion to believe that the employee is underthe influence of alcohol, illegal drugs, or illegal substances, the Borough may require theemployee, in the presence of a union representative, to undergo testing. Testing will notbe unreasonably delayed if a union representative is not available to be present.

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4. Return to Duty TestingWhen 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 beforebeing returned to work.

5. Follow Up TestingFollowing 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 berequired to submit to unannounced follow-up testing.

B. Testing ProceduresWhen 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 ofRelease ofResults

The employee will be directed to a hospital or medical clinic to provide urineand/or blood specimens for testing by an independent laboratory. In appropriatecircumstances, the employee will be transported to the hospital or medical clinic by aBorough representative. The employee will be permitted to have a Union representativepresent upon the employee's request. Testing will not be unreasonably delayed if a unionrepresentative is not available to be present.

The employee will sign any required consent or authorization forms authorizing thehospital, medical clinic, or laboratory to release directly to the Borough the results of thedrug and/or alcohol testing. In no instance will the employee be required to waive anyclaim or cause of action arising from the collection or testing process. All appropriatesteps will be taken by the medical clinic, or other collection facility, and the testinglaboratory 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 atan appropriate laboratory and in accordance with appropriate standards. The employeehas the right to requestthat both blood and urine be tested. All samples will be separatedinto two containers for the purpose of making a primary testing sample and a secondarystorage sample. The secondary storage sample can be used for the purpose of independenttesting by the employee. Positive results will be discussed with employee by a medicalreviewing 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 reviewingofficer any circumstances that may have led to the positive result.

The laboratory will report to the Borough and the employee all positive findingsfor alcohol, illegal drugs, and controlled substances. The laboratory will also reportsignificant presence of prescription and non-prescription medications.

C. "Positive" TestsThe following results constitute a "positive" test for purposes of the Borough'sdrug/alcohol testing policy: any detectable quantumof proof of illegal drugs and illegalsubstances (as defined above) in the blood or urine; and blood alcohol concentrationsequal to or in excess of .04.

D. Refusal to TestRefusal to submit to a drug and/or alcohol test as provided for in this policy will begrounds for discipline, up to and including termination of employment. A "refusal totest" includes any conduct that would obstruct the proper administrationof a drug and/oralcohol test, including refusal to provide a urine or blood sample, unreasonable delay inproviding a urine or blood sample, or attempting to dilute or tamper with a urine or bloodsample.

IV. Disciplinary ActionAn employee who has violated this policy shall be subject to discipline, up to andincluding termination of employment.

2013 Middletown Police Department Arbitration Award

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