One would assume that unions and employers would equally support Recovery at Work programs where there is common interest in the workers recovery following an injury. There is also the fact that Recovery at Work programs are proven as effective tools to control workers compensation insurance costs and prevent job loss for the injured worker.
It may not always be clear where a Recovery at Work program fits within the context of bargaining obligations under NLRA (National Labor Relations Act). A union may take the position that it is a mandatory subject for bargaining because it involves job assignments and therefore is a “term or condition of employment”. The employer will usually argue that a decision to implement a program falls within the company’s right to manage its business and is not a mandatory subject for bargaining. Failure to take a collaborative approach and build consensus with all parties early in the process, can present barriers to program acceptance. Good legal advice and coaching is necessary to guide the employer in the obligation to “bargain in good faith”, reach agreement and/or what the next steps should be if there is an impasse.
It is rare that specific language or references to return to work or Recovery at Work are contained in the collective bargaining agreement; so in the absence of language which prohibits it, there is still a window of opportunity. Some unions have used the “past practices” of allowing employees to remain out of work to close that window for employers.
A successful Recovery at Work program in a union environment is often defined by how effective the employer is at engaging, educating and partnering with union representatives in collaborative manner. Here are some strategies for success:
1. Review the collective bargaining agreement for “management rights”.
2. Review the contract for provisions related to job transfer and seniority. Know your “past practices.”
3. Get the Leadership and Management Team on board.
4. Communicate, collaborate and educate the union leaders. Communication channels vary; in some cases the union will help lead the initiative and in other cases, the organization will need to take the lead in educating and communicating with union representatives about Recovery at Work. Use existing committees, such as a joint union/management safety committee to help “champion” a program.
5. Utilize a legal advisor throughout the process.
At The Flanders Group we manage thousands of Workers Compensation Insurance programs for employers in New York and cross the United States and have found that nearly all unions approve of a Recovery at Work policy once they have been educated to the benefits of the program for union members. For more information, please call The Flanders Group at 800-462-6435.