By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 23: Proof of the Basis for Separation in Arbitration
This article is the 23rd 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 23rd article in these newsletter series provides a discussion concerning arbitrations related to medical discharges under the CBA and the requisite level of proof. 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.
Many medical restrictions do not qualify as “disabilities” under the ADA, and, therefore, do not require accommodations by the employer. As we will discuss later, Washington law is somewhat more protective of employees with medical disabilities. The extent to which an arbitrator finds just cause to exist or to be lacking will often turn on their interpretation of these statutes.
In one case, an employee had a medical restriction that did not allow him to work more than 9.5 hours a week. [87] The employer eventually reassigned the employee to a lesser paid former position with shorter shifts. The employee grieved, requesting an accommodation. The arbitrator sided with the employer. Because the hour restriction would not qualify under the ADA as substantially limiting major life activities, the restriction does not have to be accommodated. [88] Following the expansion of the definition of “disability” under the ADAAA, [89] employers will have to accommodate a wider range of disabilities than before. [90] And a different result could occur in Washington’s more expansive definition of “disability.”
The degree of proof required by arbitrators in unfitness cases is conflicted and controversial.
Unless the employee admits to being unfit for duty, the burden of proof rests on the employer to establish the actual lack of fitness, though there are questions as to the extent of this burden. At a minimum, this burden typically requires a fitness for duty exam by an appropriate health professional. During this process, the employee or the union are allowed to obtain and present a second opinion. In the event there is a dispute, but the employer insists on proceeding to termination, it will ultimately be up to an arbitrator to make the determination.
The degree of proof required by arbitrators in unfitness cases is conflicted and controversial. Many arbitrators defer to management’s determination on such issues and relax the burden of proof below what it would be under the traditional “just cause” standard. The majority approach on fitness discharge cases is to assess them under a deferential “arbitrary and capricious” standard. The arbitration cases applying this standard often focus on whether the employer had a “good faith” belief that medical evidence supported the employer action without regard to whether sufficient proof existed in fact. Especially in light of these cases, it is important for the union to present any competing medical opinions before the discharge decision is made.
It is a best practice to negotiate for CBA language that clearly states that both discipline and “discharges” are subject to just cause.
Some CBAs require medical arbitration proceedings in which the two health professionals agree on a third professional. This approach is not advisable, though. There may be a number of legal arguments the union may be able to bring which the medical professional would be inclined to overlook and not be in a meaningful position to assess. For example, often the issue concerning fitness for duty turns on whether an accommodation is reasonable, and arbitrators are better qualified to judge the “reasonableness” of such an accommodation than is a medical professional.
It is a best practice to negotiate for CBA language that clearly states that both discipline and “discharges” are subject to just cause. Absent such language, arbitrators will be more inclined to relieve employers of some of their burden of proof and apply a deferential “good faith” standard for determining whether the discharge was valid. Such a deferential standard weakens your tenure protection and could even bypass the important question of whether the medical evidence even establishes any actual unfitness.
In the next article in this series, we’ll discuss whether the exhaustion of leave provides the employer a basis for discharge that would hold up under the CBA in arbitration.
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[87] DelMonte Foods, 121 LA 1100 (Miles, 2005).
[88] Id. See also City of Minneapolis, 125 LA 558 (Befort, 2008) (holding employee with 50lb lifting restriction does not have disability under ADA as lifting restrictions of no more than 25lbs have been recognized).
[89] 42 U.S.C. § 12102
[90] See generally Paige v. Jefferson Transit Authority, 2009 WL 2057045 (W.D.Wash. 2011), for a discussion of the expansion of the ADA under the ADAAA.
