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.
➢ 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.
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