By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 12: The Duty to Accommodate Mental Health Issues
This article is the 12th 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 12th 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.
Courts are unlikely to find physical fitness tests to be valid under disability discrimination laws. There have been only a handful of cases addressing this issue yet, but it appears unlikely that these plans will be sustained. Courts have already struck down a number of these plans on gender discrimination grounds. The primary deficiency in these plans is that they do not correlate precisely to the essential functions of the job. If they did, they would not be age and gender graded the way they typically are. Since everyone in the job classification must perform the same essential functions, there is no justifiable basis, from the perspective of disability law, to age and gender score such tests.
Some of these plans have premium pay attached for successful test takers. Denial of the premium to an individual with a disability might potentially violate disability discrimination laws. An employer might be able to circumvent this requirement by simply automatically paying the premium amount to any individual who could demonstrate their failure to qualify was directly as a result of their disability.
In the next article in this series, we’ll discuss whether excessive weight is a “disability” that must be accommodated.
