Accommodations for On-The-job Injuries

Have you been injured on the job? Did you file a worker's compensation claim and then request medical leave or an accommodation? Have you been disciplined, terminated or treated differently because of these things?

In California, more than 30,000 employees suffer non-fatal on-the-job injuries. Cal-OSHA requires employers to document these injuries with accident reports. The employers are also required to notify the Division of Workers' Compensation of the injury with forms and reports. This starts the application for medical care, temporary and permanent disability benefits, and displaced worker benefits under the workers' compensation insurance process.

However, during this process, many employees don't know their rights when it comes to accommodations and medical leave. Discrimination laws, not the worker's compensation laws, govern these rights.

For example, doctors typically provide notes setting forth medical limitations and restrictions for returning to work. When you turn in the note to your employer, you are making a request for accommodation under the California Fair Employment and Housing Act (FEHA), and possibly the Americans With Disabilities Act (ADA), if the medical condition is serious. This means the employer must engage in the interactive process, in good faith, to determine if your limitations and restrictions can be reasonably accommodated. An employer cannot just say, "we don't offer light duty," or "you have to take medical leave" or "you are terminated." The employer must evaluate the requests on a case-by-case basis to determine if the accommodation would create and undue burden or hardship. The cost of the accommodation will be important when assessing undue hardship. Even after all of this, the discussion must continue in order to find out if the burden can be eliminated or reduced.

Another example would be when the employee needs medical leave and the injury created a serious medical condition. If the employer has more than 50 employees and the employee has worked for a year and has enough hours, the employer must give notice of rights and responsibilities surrounding the leave and guarantee reinstatement. These rights arise under the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA). The employer cannot just terminate your employment or deny your leave.

The most confusion surrounds the situation when the worker's compensation doctor says that an employee is "permanent and stationary" or "P&S." This simply means that your medical condition has reached maximum medical improvement. Once you are P&S, a doctor can assess how much, if any, permanent disability resulted from your work injury. In that worker's comp arena, the term "permanent disability" means any lasting disability that results in a reduced earning capacity after maximum medical improvement is reached. That's all it means. It could, but often does not, mean that you are disabled under the ADA. However, many HR professionals and managers doe not know the difference. They hear the words "permanent disability" and decide they don't want to provide light duty or other accommodations any more. Many times they terminate employees shortly after they have been deemed permanent and stationary. This type of action is discrimination and actionable under the FEHA and ADA.

The attorneys at Bryant Whitten specialize in these cases where worker's compensation claims overlap with requests for FEHA and ADA accommodations and medical leave under the CFRA and FMLA. We know your rights and can help if you have been terminated.