From Ohio
Question: With the new ADA in mind: A deputy has sleep apnea. It is not severe. He uses a CPAP, but surgery is not needed. His doctor said he cannot work third shift (12:00 to 8:00 a.m.) The CBA has shift bidding by seniority. He feels he should be accommodated. The only way to do so is displace another officer that followed the bid process. Additionally, I understand sleep apnea is a disability, however, in police work, can one really expect not to work after midnight? The same is going on now with a police dispatcher. Again, the doctor said he cannot work a swing shift or midnight shift; however, the only accommodation would be displacing another that had the right to shift bid the location they now occupy.
Answer: You should check out Barnett v. U.S. Air, 535 U.S. 391 (2002). The Supreme Court held that the obligation to reasonably accommodate a disability does not require an employer to violate the seniority clause in a collective bargaining agreement (with limited exceptions not relevant to what you describe).
From Minnesota
Question: One of our members was just given seven days off for conduct unbecoming for throwing snow on a private citizen’s vehicle while leaving work. This member has been disciplined in the past for a computer violation in which he received a letter of reprimand and for neglect of duty for leaving early in which he received a one-day suspension. Since he has never been in trouble for or charged with conduct unbecoming is seven days excessive?
Does progressive discipline mean harsher discipline comes if the same behavior doesn’t change? For example, if you are given a letter of reprimand for conduct unbecoming and then commit the same violation you get a one-day suspension, and then do it again and get a week suspension, and so on. Can any violation be used to determine a punishment for a different violation, or does each different violation require progressive discipline to change that specific behavior?
Answer: Typically, acts of misconduct have to be similar to be counted in the progressive discipline chain. There’s a bit of an exception for employees who are a disciplinary problem. In the case you’re describing, it may come down to the span of time over which the three disciplinary incidents occurred.