By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 19: Disability Protections Under the CBA
This article is the 19th 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 19th article in these newsletter series provides a discussion concerning disability rights relating to discharges under the CBA. 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.
Law enforcement and firefighters in the state are typically covered by a “dual” appeal system — civil service and a labor contract that usually contains a “just cause” requirement. The just cause requirements protect your employees when they are facing termination due to misconduct but also bear on their rights due to injury or other disability.
A wrongfully discharged employee has the right to bring a lawsuit in court, asserting their statutory disability rights. But the CBA also may offer some degree of protection. So we will discuss the “just cause” standards as they apply in arbitration in this situation. We are assuming for purposes of this discussion that a separated employee who wanted to appeal would do so under the labor contract, not civil service. The difference in the two systems is beyond the scope of this series, but suffice it to say that we would rarely recommend selecting the civil service forum where arbitration was available.
The “just cause” standard which includes a variety of “tests” applies more clearly to discipline-related discharges. Assuming that your labor contract includes all “discharges” within the just cause requirement, the employer would also have the burden to prove that a medical related separation was also for cause. The tests to apply and the nature of the burden are not the same as in a discipline case, though.
Arbitrators generally recognize that principles of just cause incorporate statutes prohibiting discrimination. This is especially the case where a collective bargaining agreement contains a non-discrimination clause. This approach extends as well to the law regarding disabilities.
