By Jim Cline and Jordan L. Jones
In City of St. Marys v. Fire Fighters Local 3633, the Ohio Court of Appeals vacated an arbitrator’s award which had reinstated an asthmatic firefighter. The arbitrator had found that the party’s fitness testing language had not been complied with but the Court determined that the arbitrator exceeded his authority in reaching that result.
The grievant firefighter failed to complete several training exercises due to being out of breath. The firefighter subsequently indicated that he was ill during the training exercise. The firefighter was then put on sick leave and asked to provide a doctor’s note before returning to duty, including having the doctor fill out eight questions regarding the firefighter’s ability to perform his job. The firefighter received a note from his doctor stating that he could come back to work, but the doctor did not answer the eight questions provided by the employer. The employer then contacted another doctor who concluded that the firefighter was not fit for duty.
In accordance with the CBA, the firefighter requested a third doctor’s opinion regarding his fitness for duty. After receiving the third doctor’s report that indicated the firefighter was not fit for duty, the firefighter was separated from the employer.
The arbitrator reinstated the firefighter after find that the third doctor’s report “does not clearly indicate that the [g]rievant cannot perform the essential functions of the position.” The employer appealed the decision and the trial court reversed the arbitrator.
The Union argued that the trial court improperly made its own judgment regarding the doctor’s report when it disregarded the arbitrator’s findings.
The Appeals Court noted that “an arbitrator’s award is ‘presumed valid’ so long as the arbitrator’s award drew its essence from the . . . [CBA].”
An arbitrator’s award draws its essence from an agreement when (1) the award does not conflict with the express terms of the agreement and (2) the award has rational support or can be rationally derived from the terms of the agreement.
The Appeals Court also stated that Ohio law pleas authorizes a court “to vacate an arbitration award upon a finding that the arbitrator exceeded the powers conferred on [him] by the arbitration agreement.”
The Appeals Court found that the arbitrator’s conclusions were not consistent with the third doctor’s findings that the firefighter was not fit for duty. The Appeals Court held that “the arbitrator’s decision does not ‘draw its essence’ from the parties’ collective bargaining agreement” which is to ensure that firefighter are fit for duty so that they can protect each other and the community and therefore the arbitrator exceeded his authority conferred to him by the CBA.
This case seems to involve many errors from start to finish. It also serves as a object lesson in the dangers of including a “medical arbitration” clause in your CBA.
Medical arbitration is a process where the parties agree to forego requiring that an arbitrator decide whether someone is fit for duty but rather rely on the binding opinion of doctors. But as this case indicates, doctors might enter medical findings regarding someone’s ability to perform job duties that might not meeting the legal standards under disability law, which this arbitrator attempted to apply, which requires that employees be accommodated.
We don’t have the benefit here of a published arbitration award to know exactly what the arbitrator was thinking. We only have this appellate court’s version of it. But it seems that the arbitrator was not impressed with the thoroughness of the doctor’s report. Likely what also made the report suspect was that the third doctor was procured during a discussion with the employer’s doctor and the city’s human resource officer. While apparently the doctor selected by the union provided certain names for the third doctor, the union was not involved in the selection.
The third doctor indicate some limits on the firefighter’s ability to work but identified them as intermittent. This arbitrator reasoned that this conclusion was not strong enough to support a discharge because it wasn’t clear that the employee was generally unfit or couldn’t be accommodated.
While the logic of the arbitrator’s ruling was suspect, so too was the Court’s. Under arbitration law, the arbitrator becomes the decider of the law and the facts. The arbitrator probably erred because for emergency response providers, even intermittent limitations on the ability to perform would normally be deemed disqualifying. But the Court erred by substituting its own judgment as to how to interpret the contract and the facts before the arbitrator.
In previous blogs here and here we discussed the high deference courts provide to arbitration decisions. In a 2009 decision involving the Kitsap County Deputy Sheriff’s Guild, the Washington State Supreme Court affirmed the high level of deference owed to such awards. Other courts provide a similar high level of deference. This Ohio decision seems to fall outside that majority rule.
Our advice of fitness for duty clauses has been uniform that “medical arbitration”clauses should be avoided. Medical arbitration is the process where if the employer and employee selected doctors disagree, they select a third doctor to make a binding decision.
If there is a question concerning someone’s fitness, medical evidence is obviously key. But someone’s career shouldn’t be determined by a doctor spending 10 minutes in his office reviewing reports. Especially with expansion of disability rights over the past 25 years, medical arbitration should be seen as a thing of the past. Disability laws provide robust requirements of accommodation and those elements are generally not applied or overlooked in “medical arbitration” processes.
