Representing the Injured or Disabled Member Part 57: A Conclusion with Some Practical Tips

By: Jim Cline

This article is the 57th and Final 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 last few months we’ve published, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We covered 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 covered 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 57th and Final article in this newsletter series provides a discussion concerning the ability of public safety employees to sue their employer when their injured. These rights vary as between LEOFF II employees and others we we’re breaking this down into two different articles. 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.

In this final newsletter article in this series,  we hope to bring everything together for you, giving you a useful summary of what you need to know to help protect your injured or disabled members’ rights.

Toward that end, this chart may provide a useful and compact visual summary of what forms of legal protections exist.  Given the occasional confusion that arises as to what laws relate only to on-duty injuries and what laws apply to all injuries, we identify those distinctions for you:

Legal Protections On Duty Off Duty
Disability Discrimination laws (ADA, Rehabilitation Act, WLAD) Accommodation Requirements X X
Family Medical Leave Act (FMLA) X X
CBA Just Cause protection X X
Workers Compensation Time Loss X
Industrial Insurance (IIA) Permanent Disability X
LEOFF II Supplement X
Disability Insurance Policies* X X
Social Security Disability X X
Public Safety Officers Benefits Act (PSOBA) X

 

*Generally,disability policies do not distinguish the cause of the disability. Occasionally policies have been written to exclude off duty injuries, but most policies extended to public safety employees do not feature this exclusion.

Certainly some protections by design are extended only to the officer or firefighter injured on duty.  Workers Compensation and its time loss, disability and LEOFF II Supplements are systems designed to compensate an employee hurt at work.  Similarly the federal benefits extended under PSOBA are for work related injuries.

Generally, other protections afforded public safety employees do not distinguish based on when or where the injury arose. The requirement to accommodate a disability or provide family leave applies without regard to the cause of the injury. Your contract, absent some special language that you might have for on-duty injuries, is going to extend equal protection to all medical conditions.  Disability rights are treated similarly, unless you have a rider that provides a greater level of coverage in the event of an on-duty injury.

To close this series out, we want to leave you with a number of practical actions you can take as a union representative to improve the situation of your injured members:

Educate Yourself. If you have read through the series so far, you’ve taken an important step in that direction. Continue to receive updates on the law through newsletters, training and other resources. These laws evolve and court rulings on the FMLA and ADA are dynamic.  Our near future efforts to provide live training throughout the state will be another important training opportunity.

Consult Legal Counsel. We designed this book to allow public safety union leaders to be proactive. Much of the information in this book can be put to use without the direct assistance of a lawyer. But some areas are complex and, at times, getting some up-front advice for navigating through these issues can be much better than waiting to place the phone call when the situation is harder to salvage. Some of the issues here are time-sensitive and require a thoughtful response in the moment.  A brief phone call can sometimes be the best first step you could take.

Be Proactive with your Troubled Member. If you have an employee with mental health or substance abuse issues, there can be no greater help that you can provide than to get them steered into an assistance program in advance of any employer investigation. The rights to accommodation are recognized far more widely when employees come forward before, rather than after, they are in trouble. If an injury or medical condition limits your member, be sure they are aware in advance of their applicable rights in this process.

Audit your Employer Workers Compensation Practices. Misinformation as to how to calculate the employee compensation in the instance of a workers compensation issue is widespread. Simply put, many Washington public safety employers do it incorrectly. Many do not understand the tax rules surrounding industrial insurance payments or how to coordinate the requirements of the LEOFF II Supplement. Some are not even aware of the LEOFF II Supplement!

Arrange for Cost Effective Disability Coverage. You are going to have members get hurt and some of them are going to lose their careers. You’ll need an income protection program in place in the form of disability insurance. Be sure in adopting the program that you understand the tax implications and adopt the program that makes the most sense in light of those tax implications.

Communicate and Cooperate. That’s the advice that you’ll want to pass forward to your members. While medical confidentiality rules under the ADA limit what information your members must (or should) share, in seeking a disability accommodation, the courts have imposed a clear burden on the employee (and the employer) to share information about potential accommodations. Failure to share that information can cause the loss of the right to an accommodation.

Complete Required FMLA Forms. Similarly, there is a duty on employees to fill out the required forms when seeking Family Leave. There is also an obligation to communicate changing circumstances. On the other hand, as we discussed above, there is no obligation to fill out FMLA paperwork for leave that the employee is not seeking. Under current law, an employer cannot compel FMLA leave just as a way of unloading their FMLA liability.

Insist on FMLA reinstatement. Employers have a right to obtain a second opinion when an employee seeks to return to duty upon return from Family Leave. But they do not have a right to hold up a return to the payroll. The same is true for fitness for duty examinations. While the employer may be able to place the employee on paid administrative leave, they cannot deny pay while they verify information that is solely for their benefit.

Be Fit for Fitness testing. Many bargaining units have negotiated or established contract guidelines that ensure the ADA medical confidentiality rules are adhered to in the Fitness for Duty Examination process. But many have not. Though the parameters of the law are gray, the general view is that the information to which an employer is entitled is restricted and doesn’t encompass the entire medical report. Be sure that your procedures do not allow fitness examiners to pass medical secrets onto the boss.

Provide Needed Member Guidance in the Fitness Evaluation Process. During this process, many members are adrift and simply do not understand their rights or what they should do. Unfortunately, many are reluctant, for a variety of reasons, to reach out to union representation when they most need it. They may even unwittingly sign forms that waive their legal and confidentiality protections. The best practice is to address this proactively by educating your members ahead of time.

Practice Your Right to a Second Examination. You and your members are not required to accept as truth the conclusion of the employer’s paid examiner. These examination results can and have been successfully challenged. Often you will only be learning of a fitness examination after the member tells you they’ve been found unfit. At this point, the union should assert itself into the process and determine if a second examination might result in a better finding. The worst thing that happens in such an examination is that you’ve confirmed for yourself and your member that their options are limited so they can start putting their energies into alternative positions. On the other hand, often these examinations reveal possible accommodations, or even that there is no fitness issue at all.

Brainstorm Regarding Accommodations. Employers are not required to accept any accommodation, but must consider reasonable ones. The required accommodation process is described by courts as a mutual, interactive dialogue. Help your member participate effectively in that dialogue by trying to identify as many potential accommodations as possible.

Make sure you have strong CBA language. If you CBA language says that “discipline” must be for “just cause,” get it amended to cover “discharge” as well. Otherwise, you will be allowing the employer a narrower standard of review on any fitness discharge decision. Also make sure that your contract “bill of rights” language contains strong procedural protections.

Remember that Prediscipline rights generally apply. Although PERC has held that there is no Weingarten right during the actual fitness interview with the doctor, most of the other prediscipline rights in your CBA or under law apply.

Understand Leave Rights. By far, leave, either paid or unpaid, is the most common form of accommodation of medical conditions. Whether it’s reasonable and for how long it’s reasonable is context-specific, but courts may allow leaves for up to a year and possibly even longer. You may also have contract terms that specify the procedures and rules around such leaves. Proactive work and discussion with legal counsel go a long way towards understanding your members’ rights in this area.

Retain your arbitration rights. Don’t agree to “medical arbitration” in the CBA. Employers prefer such language as it truncates your members grounds for challenging a fitness discharge. Doctors, no matter how well-intentioned, are not in the position of judging whether the law requires a particular accommodation. Leave your members rights in the hands of the regular grievance and arbitration process.

Monitor Your Members’ on the Job Injury Claims. The L&I Workers compensation system is designed to be user-friendly. Normally, claims can be presented without legal help. But sometimes employers “self-insure” their coverage, which often leads to aggressive tactics that can deny your members their earned benefits. If your members are hitting a roadblock, be sure to at least obtain a consult with a lawyer.

Advise Members of other Disability Payments. As identified above, there are several overlapping forms of disability coverage available. Some depend on whether the injury occurred on duty or off duty. If a permanent disability seems likely, your member should be put in touch with legal counsel.

Remember the Civil Justice Option. While most employees cannot sue their employers for workplace due to the immunity resulting from the workers compensation system this simply is not true for police and firefighters. While there are rules and limits governing such civil claims, if a member is seriously injured, legal counsel should be obtained to review all options. Similarly, your members may have civil litigation rights against third parties.

Prevention is Better than a Cure. The common sense adage is true and applies here. Be proactive on safety issues. Address safety concerns in labor management meetings. Maintain an effective internal safety review process. File complaints when needed to bring the workplace into compliance.

Stay Safe out there, Keep yourself Healthy but when facing unsafe conditions or challenges to health, always remember that “Knowledge is Power.”