8th Circuit upholds enforcement of arbitration award favoring worker in return to work grievance

Evidence of uneven application of a return to work policy lead the 8th Circuit to uphold enforcement of a  Missouri court’s  enforcement of an arbitration award forcing an employer to pay for a Functional Capacity Examination for a union employee with conflicting work restrictions.

The worker returned to work from a back injury with his family doctor returning him to work with no restrictions. Employees were required to take a functional capacity exam to determine whether they could meet the physical requirement of the job as a ready-mix cement truck driver. The worker in this case failed the functional capacity test and was sent to a neurosurgeon who opined that the worker was able to safely lift 40 pounds, while the requirement for the job was lifting 60 pounds.  About a month later, the employee re-submitted his family doctor’s opinion stating he had no restrictions. The employer then required the employee to have an independent medical examination. That doctor opined plaintiff could lift 45 pounds, which would disqualify him from working as a ready-mix concrete truck driver. The union filed a grievance to force the employer to pay for a second FCE.

However, the arbitrator was persuaded by the fact that two other workers were allowed to return to work after re-taking failed FCEs. The employer tried to distinguish those employees by stating they did not have doctors notes stating they had medical restrictions. The arbitrator was not persuaded by that argument and the 8th Circuit deferred to the arbitrator because the employer conceded that any work or safety rule they made had to be reasonable. The 8th Circuit applied the proposition that when work and safety rules made by an employer have to be reasonable, the application of those rules is a question of reasonableness. Because the arbitrator was applying a reasonableness standard, the arbitrator was acting within the essence of the collective bargaining agreement and the court could not review the merits of the arbitrator’s decision.

This case holds many lessons. Among them:

1.) Employers almost always have the right in collective bargaining agreements to make work and safety rules. Unions need to make sure it is spelled out that those rules must be reasonable. An employer may not concede to that fact like this employer did. Plus the arbitrator may not make reasonableness an implied term of the collective bargaining agreement. Barring explicit language on a reasonableness, a concession by the employer or the arbitrator making a reasonableness an implied term, the 8th Circuit could be reluctant to defer to the arbitrator’s decision on the merits of a case.

2.) Physical restrictions are imprecise. Doctors can be all over the place, which just re-enforces the importance of listening to a workers version of their restrictions and trying to work within those restrictions and the doctor-given restrictions.

3.) Accommodation of a disability or perceived disability is all about a fair process. In an unionized workplace, that process will likely be more burdensome on the employer depending on the terms of the collective bargaining agreement.

4) Employers need to equally apply policies to similarly situated employees and not split hairs over what constitutes a similarly situated employee.


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