Management Rights - AELE's Home Page

Light Duty 11-4
§ 2 INJURED ON DUTY SITUATIONS
Section 111F specifies that eligibility for leave without loss of pay for line
of duty injuries terminates when a municipally-designated physician
determines that the employee is able to return to work. 7 No obligation
exists to notify the union of the employer's requirement that an injured
worker submit to a physical by a municipally-designated physician to
determine that employee's fitness for duty. In fact, failure to comply with
an order to submit to such an examination would constitute
insubordination and could provide grounds for termination (if not some
lesser form of discipline). It has not yet been decided, but it is possible
that such refusal might provide the basis for removing an injured
employee from 111F leave status, presumably after notice and an
opportunity for a due process hearing. 8
PRACTICE POINTERS
The employee's physician has no role under the provisions of § 111F in
determining eligibility for leave in the first place, the duration of any IOD
leave, or the return of an injured employee to full or light duty status.
However, to the extent that the present and prior chiefs have traditionally
relied on the opinion of an employee's physician, and where no
municipally-designated physician was ever used, the Labor Relations
Commission has decided that a unilateral change in this past practice
required notice and an opportunity to bargain. 9 While the chief argued
that such reliance was not automatic, and that the chief's policy was to
assess each case on an individual basis, this was not sufficient to
persuade the LRC that no unilateral change was involved. Such an
argument failed in the previously discussed Hull case, presumably
because the Hearing Officer doubted the explanation and also because
there were no instances where the exercise of such discretion resulted in
any action by the Chief in denying a request for future sick leave
borrowing.
Disputes often arise over a sick or injured employee's fitness for return to
duty. In the absence of a controlling provision in a collective bargaining
agreement, or a past practice to the contrary, a chief should be able to
require an individual to produce a note from his or her doctor or a
municipally-designated physician clearing the employee to return to duty.
To the extent that the chief has not done so previously, notice and an
opportunity to bargain may be required, (i.e., if the union challenges the
chief's action and/or demands bargaining). In order to avoid confusion
when this issue arises while an employee is out on leave, a chief could
post a notice and inform the union that he/she may use such procedure if
and when the occasion arises. As a practical matter, however, if the chief
has not posted such notice and is faced with an issue of how to handle a
Commonwealth of Massachusetts