May 2012

By: James B. Sherman, Esq.

In Breckenridge O’Fallon, Inc. v. Teamsters Union Local No. 682, F.3d ___ (8 ^th Cir. 12), after an extended absence for a work-related injury, the employee’s treating worker’s compensation physician released him to return to work with no restrictions. However, pursuant to its return-to-work policy the employer required the employee to undergo a Functional Capacity Evaluation (FCE) administered by an independent physical rehabilitation clinic. The FCE involved a detailed, three day evaluation under conditions designed to mimic the physical demands of the employee’s position as a ready-mix truck driver. After the employee failed the FCE the company sent him to get a third, tie-breaking medical opinion on his workability, as expressly authorized in the DOL’s regulations implementing the FMLA. See 29 C.F.R. §825.307(c). The tie-breaking exam sided with the FCE results, concluding that the employee had reached Maximum Medical Improvement (MMI) with permanent lifting restrictions below the minimum physical requirements of the job.

When the employer refused to schedule the employee for work based on the above medical evaluations his union, Teamsters Local 682, challenged the decision in arbitration. An arbitrator held that the employer violated the union CBA by not allowing the employee to take a second FCE as other employees had been allowed. On appeal the court dismissed the argument that the arbitrator’s ruling was contrary to federal law – the tie-breaking medical opinion from the DOL regulations on FMLA – because that process was merely optional, not mandatory. The court ruled that the arbitrator’s opinion drew its essence from the governing CBA because although the employer’s return-to-work policy did not require giving the employee a second FCE, its inconsistent application of that policy to the employee was “unreasonable” in violation of the CBA (actually, the employer unwittingly conceded the need for “reasonable” work rules in submitting the issue to the arbitrator).

Short Lessons:

• The FMLA tie-breaker process from DOL regulations apply only to FMLA issues, not arbitration.
• Employers frequently modify or essentially re-write their collective bargaining agreements – to their disadvantage – by agreeing with clever union representatives when submitting issues to an arbitrator for resolution. Issue submission language is highly technical and great care should be taken.
• Had this been an ADA case no doubt the EEOC would have insisted that the employer explore all reasonable accommodations (including any available positions for transfer if accommodations could not be made for the driver’s job).