Atty Hykel Persuades Arbitrator That Shaws' Treatment of Sick Workers Violates UFCW L791 Contract

The Equal Employment Opportunities Commission (EEOC), which enforces various federal anti-discrimination laws, interprets the Americans With Disabilities Act (ADA) to prohibit termination of employees who, for medical reasons, fail to return to work with a certain period of time. In fact, the EEOC sued corporate parent of Shaw's Supermarket for maintaining such a policy. The ADA requires to treat requests for reasonable accommodations by workers with serious medical conditions on an individual basis, rather by reference to blanket policies.

Shaw's subsequently amended its own policy to place workers on medical leave on "inactive status," instead of terminating them, after a certain period of time, or a maximum amount of leave. This change, however, violated Shaw's collective bargaining agreement with UFCW Local 791. Local 791 negotiated a contract that allowed Shaw's to make changes only when it results in "more favorable conditions" than provided under the contract.

Here, Attorney James Hykel persuaded the neutral arbitrator that placement of sick workers on "inactive status" was not a more favorable condition. The arbitrator determined that "inactive status" was functionally no different from termination: "Specifically, when an employee is terminated the employee's seniority ends, and when an employee is
placed on inactive status the employee's seniority ends."

In conclusion, he wrote: "Obviously, the Employer must comply with applicable law before terminating the employee, and this decision should not be read that an employee has the contractual right to continue to be on medical leave forever. An employee's medical condition must be assessed on an individual basis as required by the ADA prior to being terminated by the Company. The Company, however, cannot place an employee in an inferior employment status prior to the Company engaging in this process."

The arbitrator ordered Shaw's to rescind its policy and reinstate an employee represented by Local 791 improperly placed on "inactive status."