Return To Work Issues

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EMPLOYEE RECEIVES OFFER OF MODIFIED/ALTERNATIVE WORK AND ACCEPTS; LATER SHE FILES CLAIM OF DISABILITY DISCRIMINATION UNDER FEHA

A 30 year old Warehouse Stock Clerk sustains an admitted back injury and is provided workers’ compensation benefits, during which time she is receiving medical care to cure and or relieve from the effects of the industrial injury. After being off of work on temporary total disability for a month, the employer is able to provide temporary light duty, with restrictions from the treating physician, calling for the avoidance of lifting over 25 lbs, no climbing of ladders or multiple steps, no prolonged bending and no standing over 30 minutes. The employee returns to work under these temporary work restrictions. The Claims Administrator sends out an end-of temporary disability (TD) notice, together with a timely notice of rights to the potential Supplemental Job Displacement Benefit (SJDB). Three months later, the treating physician finds her back injury is permanent and stationary. Upon reviewing a written Job Description, the doctor finds there is some functional impairment and therefore the applicant should avoid ladder climbing and lifting any item weighing more than 35 lbs. The written Job Description specifies the essentialfunctions of the position would require the applicant to lift boxes, cartons and other parcels and warehouse related items, weighing between 5 lb and 75 lb, on a daily basis and throughout the day. There was also a frequent need to ascend and descend 6 foot ladders. Otherwise the applicant has a Whole Person Impairment under the AMA Guides, 5th Edition (WPI) at 10%. Based upon these considerations, the employer was able to accommodate with the provision of an alternative job which was entitled Warehouse Inventory Clerk. This position required no lifting over 20 lbs and no ladder climbing. The position paid at least 90% of the wages and benefits at pre-injury, was in the same warehouse location and would last at least 12 months. The Claims Administrator makes the written offer on form DWC-AD 10133.53.

The applicant accepts the job offer. But, four months later, she files a complaint with FEHA, alleging employment disability discrimination. A right to sue letter is issued and the applicant hires a lawyer and brings a civil action against the employer.

In this workers’ compensation claim, every required state-mandated, written notice to the injured employee was sent on time and all benefits were provided to the injured worker. Upon knowledge that the applicant would have some permanent work restrictions, and based upon the treating physician’s medical reports, the Claims Administrator transmitted the offer of alternative work and so the employer thought that all of the issues had been resolved. The problem of course was the unawareness of the interplay between the workers’ compensation return-to-work statutes and governing rules and California State law, which prohibits employment discrimination. Unfortunately, the unsuspecting employer and the very well intentioned Claims Administrator were doing everything proper, under workers’ compensation law but within the “Twilight Zone” of these two systems, there was a disconnect.

WHY IS THERE FEHA EXPOSURE?

➢ California employers with five or more full time employees are covered under the California Fair Employment and Housing Act (“FEHA”), which specifically prohibits employment discrimination based upon a number of factors, including physical disability, mental disability or medical condition. The statutes specifically require employers to reasonably accommodate employees or job applicants with disabilities, or employees who have a record thereof or have been regarded as or treated by the employer as having a disability, in order to enable them to perform the essential functions of the job. Accordingly, under California employment law, employers may have civil exposure for failing to accommodate workers with a physical or mental disability, which limits a major life activity. Major life activities specifically include work. This exposure exists even though the Claims Administrator followed every rule within the workers’ compensation claim!

➢ Available remedies to an aggrieved employee include, hiring, back pay, promotion, reinstatement, cease and desist orders, administratively imposed fines, punitive damages, attorney fees, costs for expert witnesses and even damages for emotional stress.

➢ The afforded protections to the employees are much broader than those under the federal ADA statutes. Unlike the ADA, which requires that the disability cause a substantial limitation of a defined major life activity, under California law, all that is required is the disability simply limit a major life activity, including work. It isn’t very difficult for applicants to cite their own medical record in the worker’s compensation case and then claim that due to the residuals of the injury, one or more work activities (“major life activity”) is being limited. In the example above, the injured worker merely has to point out that she can’t lift over 35 lbs and can’t climb ladders; she has essentially proven that she has a limitation of a major life activity –i.e. her prior job as a Warehouse Stock Clerk.

➢ Even if the pending workers’ compensation claim has been resolved, including the offering of regular, modified or alternative work by the Claims Administrator, FEHA exposure remains. This is often overlooked or simply forgotten. It is here that a disconnect can occur and where the employer is left with major potential exposure, even after an employment offer has been made for regular, modified or alternative work.

WHAT CAN BE DONE TO MINIMIZE THE FEHA EXPOSURE?

At the EMPLOYER LEVEL:

o Establishing an interactive process which engages the injured worker and which has defined guidelines

o Don’t wait until the employee is permanent and stationary before commencing the interactive process for potential accommodation

o Ensure that supervisors, managers and senior management are aware of the interactive process requirement and when senior management needs to be involved. “What are those trigger points?”

o Provision of training to supervisors

o Establishment of best practices

o The essential functions of each job should be established and reduced to writing

o Written Job descriptions should exist for each position

o THE INTERACTIVE PROCESS: The interactive process should involve GOOD FAITH and a meaningful dialogue with the injured worker; it should engage the employee and be specific to each employer. The process will end if the employee cannot perform the job even with accommodation. COMMUNCIATION IS KEY: FEHA will consider an automatic violation if there is simply no effort to communicate with the employee in the interactive process

o All efforts at engaging the interactive process should be well documented, even if they were not successful

o The interactive process should involve members of management, including Human Resources

o Consider any policy which does not permit permanent modified work to be a “red flag”

AT THE REPRESENTATION LEVEL: LAWYERS REPRESENTING EMPLOYERS IN THE WORKERS’ COMPENSATION CASE:

o Understanding the relationship between the pending workers’ compensation matter and the FEHA issues. That the settlement of the workers’ compensation claim does not effect the FEHA investigation process

o If the compensation issues are being resolved, what is the intent to resolve the FEHA issues? Providing consideration and advice to the employer

o Legal effect, if any, of a compromise and release upon a pending FEHA claim, including evidentiary issues which might cross over

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