An arbitrator has sided with an Ohio township who exercised the emergency clause in its collective bargaining agreement (CBA) during the COVID-19 pandemic. The arbitrator upheld a unilateral decision from the township to limit on-site work to essential staff only, which effectively suspended light duty.
The township is a party to a CBA with a police union. Section 13.04 of the CBA requires the township to permit employees to work light duty while on injury leave, providing there is work available within the employee’s medical restrictions.
On March 9, 2020, the township notified a police officer that his injury leave light duty would expire. The township contended that the officer had been on light duty for longer than required by the CBA, that no meaningful light duty work remained, and that the officer could apply for workers’ compensation benefits through the Ohio BWC. The officer filed a grievance, alleging the township violated Section 13.04 because there was light duty work still available for him in the police department.
While the grievance was pending, on March 17, 2020, the township issued a directive to protect its workforce, operations and citizens due to the burgeoning COVID-19 pandemic. In addition to other measures, the township immediately limited on-site work to essential employees only. The township defined essential employees to include “full-time and part-time personnel working full-duty.” Employees working light duty were excluded. The officer grieved this directive too, alleging the township had no right to unilaterally suspend Section 13.04 or other sections of the CBA.
At arbitration, the township argued that it had the management right to determine whether light duty work was “available,” and to suspend light duty during the COVID-19 pandemic. Section 6.01(D) of the CBA states that the township maintains the management right to “[t]ake actions as may be necessary to carry-out the mission of the Police Department in emergencies.”
The arbitrator agreed with the township and found the union failed to prove that COVID-19 did not qualify as an emergency under Section 6.01(D). He further found that the township’s decision to end the officer’s light duty and suspend all light duty work due to the COVID-19 emergency was not arbitrary, capricious or unreasonable. He ruled that the township “had the absolute contractual right to determine that light duty was not available during this time and to temporarily suspend light duty work until the COVID-19 emergency is rescinded.”
When invoking an emergency clause, an employer should closely examine the language of the CBA and seek to adhere to it as much as possible. Many arbitrators will apply a four-part test to these cases: 1) Management must not be directly responsible for the emergency; 2) The emergency must involve a situation which threatens to impair operations materially; 3) The emergency must be of limited time duration; and 4) Any violation or suspension of contractual agreements must be unavoidable and limited only to the duration of the emergency. The employer should also meet with the union as soon as possible to discuss the proposed action.
The case was In re: Olmsted Township, FMCS No. 200522-06486 (Nov. 4, 2020). The Employer was represented by FDAR attorney David A. Riepenhoff. The attorneys at Fishel Downey Albrecht & Riepenhoff, LLP advise and represent employers throughout Ohio in labor & employment law, collective bargaining and litigation. If you have any questions about this, or any other topic, please contact us at info@fisheldowney.com or call 614.221.1216.