In 2014, King County began to signal to the King County Corrections Guild that it wished to include mandatory overtime in the “essential functions form” that it had been providing to doctors for the purposes of assessing disability accommodations. Historically, mandatory overtime, along with voluntary overtime, was a common practice for corrections officers of the Guild. The Guild disputed the notion that mandatory overtime was an “essential function” of the position.
The County’s job postings and application materials for corrections officers had consistently mentioned mandatory overtime, and the CBA between the parties included an extensive article regarding overtime, voluntary and mandatory. For many years, the County had accommodated medical restrictions on correctional officers’ ability to work mandatory overtime. But beginning in 2014, the County began deducting hours from affected officers’ FMLA accruals when they would have been required to work overtime but were medically excused. This practice was not grieved by the Guild.
By 2019, the number of officers with medical restrictions on overtime had increased significantly, prompting internal discussions regarding staffing shortages. One proposed solution by the County was to define mandatory overtime as an essential function of the job and bargain with the Guild on rules, scheduling, and leave. However, the number of officers with restrictions continued to climb, reaching 250 by the end of 2022, alongside approximately 120 open officer positions in 2023.
On August 1, 2023, the County issued a notice of proposed medical separation to Officer Juliana Bucio-Suarez, citing her medical restrictions on overtime and exhausted FMLA. Bucio-Suarez eventually submitted documentation that rescinded her medical restriction on overtime, but the County’s opening salvo had been fired.
The Guild demanded bargaining on medical separations, arguing that the practice altered the process for terminating employees and short-circuited the CBA’s requirements, and additionally indicating an intent to file an unfair labor practice charge. In subsequent communications, the County refused to rescind medical separations or bargain over whether it experienced undue hardship in accommodating employees, arguing that the medical separations were consistent with past practices where an employee could not meet essential job functions and citing the operational impact of the high number of medical restrictions on the workforce. Another medical separation followed later that same month, and this time, it was completed – Officer Jill Hallowell lost her job. In response to an information request from the Guild, the County was unable to find any examples before 2023 of medical separations based on an inability to work overtime.
The Guild demanded to bargain the placement of employees on paid administrative leave while contemplating medical separations. The County countered that paid administrative leave while was consistent with its practice in disciplinary actions and COVID vaccination cases and denied using paid administrative leave to prevent FMLA accrual.
The Guild filed an unfair labor practice complaint with the Washington State Public Employment Relations Commission.
PERC held that the County committed an unfair labor practice when it refused to bargain with the Guild before medically separating officers who had overtime restrictions and had exhausted their FMLA. The medical separations were a mandatory subject of bargaining, and County policy regarding such separations had represented a genuine change in the status quo.
“The parties spent considerable time at hearing and in their briefing discussing ‘essential functions’ of the position of corrections officer and that term’s relationship to disability discrimination and accommodation and FMLA. This is not surprising given that the Guild’s complaint framed the alleged unilateral change as a change in ‘essential function.’ However, the record is clear that the unilateral change alleged in the Guild’s complaint was the Employer asserting the right to end a corrections officer’s employment because they were medically restricted from performing mandatory overtime and had exhausted their FMLA leave.
“The Employer’s rationale for the separations was that the officers could no longer perform the ‘essential function’ of mandatory overtime without a leave accommodation. Since there had been a long history of allowing officers to continue to work with medical restrictions on overtime, I find medically separating them for this reason to be an effective change in the ‘essential functions’ of the position. Being medically separated ends the employment relationship. Therefore, like disciplinary termination, it directly affects the employees’ core interest of continued receipt of wages and other benefits of employment.
“While I am sympathetic to the Employer’s staffing dilemma, that dilemma did not relieve it of the obligation to provide the officers’ Guild notice and an opportunity to bargain before it unilaterally changed the long-term expectation of continued employment and accommodation of corrections officers with medical restrictions on their ability to work overtime.”
King County, Decision 13920-A (PECB, 2024).