Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 2: Introduction to the Duty of Accommodation and the Maze of Disability Laws
This article is the 2nd in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the next two to three months, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering all also going to be addressed in detail in an upcoming book we’re publishing: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The Second article in these newsletter series provides an overview and introduction to the rights of accommodation under disability laws. For more information, visit our Premium Website. On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
The next several articles in this series will cover disability discrimination laws which apply to employees who are limited in their ability to work due to injury or disability. It includes a discussion of state and federal disability discrimination laws. We also address how these laws relate to the separate employer obligation to engage in collective bargaining.
Most of the laws here are “individual” in nature, in that they extend legal rights to your members separate and apart from the CBA. On the other hand, though, many of these mandates effectively become integrated into your CBA, either through express cross-referencing (for example a clause that says the employer will follow the ADA or the FMLA) or through the application of more general legal clauses such as “just cause” or nondiscrimination.
One of the main points to be stressed as we cover these competing laws is that you cannot just examine a single statute and have the answer for an individual’s situation. In most disability situations, more than one law applies and the employer, of course, must comply with all the laws. The myriad of laws may seem somewhat conflicting, but they can be “harmonized” and, in fact, must be.
The net result is that when these issues arise you will likely want some early and immediate “hands on” assistance of your legal counsel. And often your member too may need to retain their own private counsel, especially since their interests and the union’s interests may diverge and because they have rights that surpass those simply available in the CBA.
There are potential traps for all concerned, but if everyone involved entered this process in good faith and with the goal of being reasonable, the best possible outcome can be achieved. There is an overall duty of “reasonable accommodation” and that’s what we turn to in the next article in this series
