Forced out on leave when you can still work: Workers’ Compensation Injuries and Disability Discrimination in California

Employee injuries happen.  Under the mandatory reporting policy in California, a claim must be submitted to the workers compensation carrier and it will either be approved or denied. Just navigating the workers compensation arena is complicated; a workers’ compensation (“workers’ comp”) attorney is usually needed just to get things moving along to ensure you get the treatment you deserve.  We can refer you to a workers' comp attorney.

Often you’ll need another attorney; an employment law attorney.   Here is why:

Out on leave waiting for permanent stationary status-Employer won’t let you work light duty

What happens when you’re placed on leave even though you can work just not at full capacity? Your worker’s comp attorney is only responsible for the treatment of your work related injury. We help with this issue because it could be Disability Discrimination under the Fair Employment and Housing Act (“FEHA”.)

The FEHA interactive process: Employment Law Disability Discrimination Claim

Under FEHA disability accommodation laws, upon notice of your work limitations, usually found in your progress reports from your doctor (“PR-2’s”), your employer must engage in the “interactive process.” Failure to do this may result in liability.  The “Interactive Process” is a back and forth discussion between you, your employer, in concert with your doctor to see if you can do the most important parts of your job with or without accommodation.

Failure or Refusal to provide reasonable accommodation: Employment Law FEHA Disability Discrimination Claim

What if your employer gives you a hard time about coming back to work or says just get better and wants you to be 100% healed before you come back? You may be okay with that, but requiring you to be fully healed is against the law. Light duty is mandatory if it does not create undue hardship on your employer and your employer has more than five employees.

Why can’t I just use my workers compensation attorney?

Simply put, most workers compensation attorneys don’t underst this area of law, and when they try, it limits recovery. Some workers compensation attorneys attempt to navigate these sorts of claims by “forcing a square peg in a round hole.” It's usually a bad decision.  They call the refusal to reinstate or accommodate and sometimes termination, retaliation for filing the workers compensation claim. They  bring a claim under Labor Code sec. 132a ("132a"). That really is only a slap on the wrist, $10,000 maximum recovery, and usually does not fully compensate lost wages, benefits, and emotional damages. FEHA claims may entitle victims to punitive damages in some circumstances.

Example why 132a might not be the best way to go forward:

Let’s say you’re data entry clerk, making $15 an hour, and you broke your ankle carrying a box of papers up the stairs to the next floor because the elevator was not working again. Your duties usually require only desk work and you rarely leave your desk except to go to lunch, get a cup of coffee, or attend the occasional staff meeting.

You filed a workers compensation claim and you are awaiting your “permanent and stationary status.” You feel you could do your job but your employer wants you to be 100% healed before you come back. You know that disability payments don’t pay the same as your regular wages and you have rent/mortgage, bills, and kids to feed. Despite your protests, your supervisor forces you out on disability leave for 18 weeks and then the company fires you for “job abandonment.” 

A 132a claim is weak at best. Showing the termination was because you filed the workers comp claim will be the only solution that most workers comp attorneys will see. The value of a 132a claim pales in comparison to a FEHA wrongful termination claim with an employment lawyer. There is no cap in FEHA disputes and you are able to pursue emotional damages as well punitive damages in some circumstances. 

The math:

Not only would you have made $10,800 during the leave if you would have been placed on light duty, but now since you were terminated you will lose $600 every week until you find a job and all the jobs you are considering are paying less. You’d be entitled to additional damages for any emotional suffering that results not available under 132a. You get the point, it could be well over $30,000.00 by the time you get another job not including any emotional suffering.

Getting an employment lawyer to advise you early on during the workers’ comp case is the responsible thing to do. They can help you prepare for this sort of case, especially if you know your employer hates light duty or has fired others while out on workers’ comp leave.

Normally the doctor will automatically place you as “TTD” or temporarily totally disabled if your employer believes they are unable to accommodate. If you disagree you need to tell your doctor that you think you can do your job and you need an employment lawyer.

Can you be fired while out on Workers’ comp leave?

This is a very common question. It depends. There is no law that says it is illegal to terminate someone who is out on workers compensation leave. There are some laws that protect employees that qualify for them; CFRA/FMLA. Eligibility depends on amount of time worked before the leave (1,250 hours in last year), number of employees (50+), full-time employment held for at least one year. This only protects you up to 12 weeks.

Your employer does have an obligation to accommodate you however. Consider requesting time off through a specified date as accommodation of your disability and do it in writing. Jensen v. Wells Fargo.  This places you in a protected group. If they terminate you, and the leave is not so long it would create an undue burden, it could be considered a failure to accommodate and give rise to a claim.

If you are confused and are in this or a similar situation, contact us to discuss your options.

The image in this article was provided courtesy of Ambro / FreeDigitalPhotos.net