PROGRESSIVE DISCIPLINARY ACTION BETSY REEVE REEVE SHIMA P.C. 206 624-4004 JUNE 29, 2017

Can I Discipline someone who suffered an injury?

Can I Discipline someone because of his or her actions that caused the injury?

Can I discipline or terminate someone who is working temporary light duty?

Can I terminate someone who cannot perform their job due to the injury?

Can I discipline someone who does not follow their work restrictions?

Answer: YES, for 1. Unsafe practices; Policy/rule violations. 3. Think twice about excessive absenteeism.

Employee has no bubble of protection from discipline simply because a claim is filed.

However… Employer may not take employment action because of the filing of a worker’s compensation claim or intent to file a claim in Washington.

RCW 51.48.025 provides that an employer cannot discharge or discriminate against an employee who filed a claim or expressed an intent to file a claim EXCEPT: An employer can take action for other reasons including, but not limited to the employee’s

Failure to observe the safety standards adopted by the employer, and The frequency or nature of the worker’s job-related accidents.

Can an Employee be Disciplined For Not Following Safe Practices? Answer: Yes. Definitely IF employee violates a specific safety regulation; Definitely IF district adopts company rules which employee violates; and Probably IF the employee engaged in an unsafe act even if it does not violate a specific regulation or rule. Also, the unsafe practice may qualify as violation of a general safety standard.

Violation of Specific Safety Standard Chemicals Fall protection Lock/Tag out Hearing Loss Asbestos Machine safety & guarding Ladders Storage areas Bloodborne Pathogens

Violation of District Rule Examples: Drug & Alcohol Policy Seat Belt Usage (43% of fatal work accidents per US Census Bureau) Safe School Plan

Drug testing: discipline for positive drug test Unlike other states, Washington has no law that prohibits or limits benefits to employees whose injuries were caused by drug or alcohol use. New 2016 OSHA rule: test for drugs is allowed at time of industrial injury only if drug use could have contributed to injury. Reason: Post-accident testing may discourage workers from reporting injuries. Exception: if employer conducts testing to satisfy state or federal law, e.g. DOT. Per OSHA, Not reasonable for bee sting or repetitive use injuries.

Update on OSHA drug testing rule Update: Rule challenged in court by employers. Court refused to stay enforcement of the rule in 11/16. Obama administration delayed enforcement of the rule until 12/1/16. Technically, rule can be enforced now but Trump filed a request to stay the litigation so they could review the rule. Current administration reviewing other OSHA rules. Guess: OSHA will not enforce the rule for now. Summary: If your CBA or personnel policy contradicts OSHA rule, safest approach is to follow rule. Will capture most accidents which may have been caused by drugs anyway. Then, impose discipline for a positive drug test – but see slides on timing of discipline.

Engaging in Unsafe Act Examples: Climbing onto table to hang pictures Walking through water (Falls are 12% of fatal work accidents) Not following protocols for dealing with behaviorally disturbed students

In 2015, primary cause of Washington workers’ fatalities was “transportation incidents.” Do you have a policy requiring seat belt use? Do you provide any training or reminders regarding seat belts? Do you have a policy that requires reporting tickets received while working? Do you discipline an employee who receives a traffic ticket while working?

However… Employer may not take employment action because of the filing of a worker’s compensation claim or intent to file in Washington. Tip: Carefully document reason for discipline if follows workers’ compensation claim. Consider removing any mention of claim or injury. Just the unsafe act that results in discipline.

Can I discipline an employee working light duty? Answer: Yes

Examples of Light Duty Terminations Chad Thomas – threatening behavior Floyd Peterson – “zero tolerance” for eating Safeway’s food without paying Sean Murphy - tardiness O’Keefe – poor job attendance (did not return to work after Dr. appts) & inappropriate comments

Consequence of Light Duty Termination If modified job approved in writing by doctor before offered to worker, no time loss compensation paid when worker is fired. If no job approval obtained, time loss compensation is resumed. Partial time loss (LEP) may still be payable if approved to work only a partial day or at lower wages.

Can I discipline someone who does not follow their work restrictions?

Answer: Yes, assuming worker knows that he must follow his restrictions. Good practice: Provide copy of APF or restrictions to worker. Direct him/her to follow those restrictions. Direct him/her to let proper authority know if he is ever asked to exceed restrictions.

Can I terminate someone who cannot perform her job due to the injury?

- See slides on Duty to Accommodate. Answer: Depends. Generally, no because you must first consider reassignment to vacant positions for a reasonable period of time as an accommodation for the disability. - See slides on Duty to Accommodate.

What if the activity does not warrant discipline? e.g. employer is concerned because claimant seems to be reverting to use of prior equipment (vacuum)? An employer must continue to provide the same transitional duty until either the doctor changes the restrictions or claimant consents in writing to a change in duties/equipment. Use the Interactive Process. Coach the worker.

No automatic termination for being absent for a proscribed number of months EEOC has been challenging terminations based on application of a neutral absenteeism policy, e.g. An employee will be automatically discharged who has been absent from work for 12 months.

Determine Timing of Discipline. ” Impact of sympathy for a hurt employee who violated safety standard. Collective Bargaining Agreements may require immediate discipline. Example: “Within ten days of event giving rise to discipline or within ten days of that District reasonably should have known of the event.

Determine Timing of Discipline. Consider delaying disciplinary discharge until injured worker returns-to-work after an injury – Glacier Northwest case. Board held that employer had to continue paying time loss compensation even though employer had a light duty job available because claimant could not return to that job due to termination immediately after injury.

Betsy Reeve ereeve@reeveshima.com 206 624-4004 Any questions? Betsy Reeve ereeve@reeveshima.com 206 624-4004

Paul Chasco, Director of Risk Management