By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 16: The Connection between Collective Bargaining Rights and Disability Laws
This article is the 16th 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 16th 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.
There are a number of issues that arise concerning the interface of disability laws and the collective bargaining law. The courts have been fairly clear that to the extent an accommodation would actually violate the terms of the CBA, the accommodation is not reasonable and need not be made. For example, if the CBA contains a shift bidding process, than individual with a disability who seeks an adjustment in the bid process cannot demand that the shift bidding process be altered. But there is also case law that holds that an employer violates the ADA when it fails to at least ask a union whether it is willing to enter a memorandum of understanding modifying the CBA.
It is an open question under law what the employer’s obligations are when the requested accommodation does not violate an explicit term of the CBA, but is contrary to a “past practice” not expressed in the CBA. There is limited case law on this question, but the prevailing view seems to be that such past practices do not impede the employer’s ability to make an accommodation.
This result is reflected in City of Dearborn Heights.[1] There the arbitrator faced a claim by the City that it was authorized, as part of its duty to accommodate, to move a police lieutenant who suffered from “brittle diabetes” off of night shift, despite the existence of a past practice of bidding by seniority. The arbitrator concluded that deviation from seniority was a reasonable accommodation under the ADA and should be allowed despite seniority practices. The Arbitrator reasoned that compliance with the collective bargaining agreement was only one factor in assessing whether an accommodation was reasonable, not a controlling factor. He applied a “balancing” of interests approach and concluded the night shift work greatly aggravated a life threatening health condition for the individual officer so that the overall balance favored allowing the out-of-seniority assignment.
At the very least, it seems the courts would require that an employer would have to seek out the union’s position on whether it was willing to alter an existing past practice. If, after such a modification is requested, and the union indicates it is willing to forego prior practices to make an accommodation, it is likely the accommodation is required and that it constitutes unlawful discrimination not to make the accommodation (assuming that it is otherwise reasonable).
Occasionally, employers will seek a broad contractual waiver of the union’s bargaining right to allow it to make “whatever changes are required” by the ADA. It is unwise to enter into such a broad waiver because of the unforeseen impact such language may have on the rights of other employees. The better practice is to address the requests for accommodation on a case-by-case basis as they occur, rather than forfeit the union’s rights to participation in a discussion about the scope of the allowed accommodations.
[1] 101 LA 809 (Kanner 1993.
