By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 21: Medical Separation Arbitrations
This article is the 21st 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 several weeks and continuing for the next several weeks, 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 are addressed in detail in our newest book: 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 21st article in these newsletter series provides a discussion concerning arbitrations related to medical discharge under the CBA which involve an element of misconduct. 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.
Employees with physical or mental conditions that interfere with their ability to perform the job functions are potentially protected under state and federal disability discrimination laws. The rights of employees under given circumstances is discussed in greater detail later in a chapter addressing the legal rights of injured and disabled employees.
Employees with physical or mental conditions that interfere with their ability to perform the job functions are potentially protected under state and federal disability discrimination laws.
Arbitrators generally hold that the “just cause” requirement implicitly incorporates the mandates of state and federal disability discrimination laws. Therefore, they will require employers to comply with any legal duty they may have to accommodate an employee.
General standard. Nonetheless, there sometimes comes a time where it is clear that the employee is not capable of performing the job because of physical or mental limitations. Arbitrators have held that where it is established that the employee cannot and will not be able to perform the job, this is in itself just cause for discharge.
The challenging situations arise where the employee is recovering, but the progress of recovery is uncertain. Employers will sometimes object to being compelled to maintain an opening for an employee. Arbitrators have approached this problem from a rule of reason: The employer will be required to maintain the employee on a leave status (unpaid, if paid leaves have been exhausted) if there is a reasonable prospect that the employee can return in a reasonable amount of time. But when either the prospects of recovery are low or in the distant future, an arbitrator will generally hold that the employer is justified in discharging the employee.
One expedient way to address this challenge is through contract negotiations by adopting a provision of the civil service rules allowing for “medical reinstatement.” Some jurisdictions have created civil service rights, placing medically disabled individuals on a medical reinstatement register, giving these individuals priority for reinstatement, up to a period of time, if there is a recovery.
In the next article in this series, we’ll discuss how arbitrator’s approach the issue of employee’s whose mental health may create a direct threat in the workplace.
