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How To Handle Injured and Disabled Workers A number of laws grant rights to injured and disabled workers—the Workers Compensation Act, the disability discrimination laws (ADA and FEHA), and the family leave statutes (FMLA and CFRA). We will begin with an overview of those laws. We will then discuss two practical steps that you may take to reduce the risk of liability under those laws—insistence on documentation (of job descriptions and performance issues) and institution of an effective return to work program. Finally, we will consider three real world problems to deepen our understanding of the issues—matching the job description to the job, finding a vacant position, and workers compensation leave. Workers Compensation Act The Workers Compensation Act applies to all employers and employees in California. It establishes a system of compensation for employees who are injured at work. The system assures that the injured employee receives medical care, an income supplement for periods of temporary disability, and compensation for any permanent disability. A doctor determines whether the injury triggers work restrictions, and whether the injury makes it impossible to return to the pre-injury occupation. If return is not possible, the worker is eligible for vocational rehabilitation (called supplemental job displacement benefits under the recent reform legislation). Americans with Disabilities Act The ADA applies to all employers with 15 or more employees, and protects qualified employees with disabilities. To be qualified, the employee must be able to perform the essential functions of the job with or without a reasonable accommodation. A disability is an impairment that substantially limits a major life activity. Fair Employment and Housing Act The FEHA applies to employers with 5 or more employees. It protects all employees with disabilities, whether or not they are qualified. A physical or mental impairment that limits a major life activity constitutes a disability. In assessing the severity of the impairment, you ignore the effect of any mitigating measures. Reasonable Accommodation Both statutes require employers to provide reasonable accommodations for the known disabilities of their employees. Accommodations may take the form of restructuring a job, reconfiguring the workplace, or providing unpaid time off. Family Leave Statutes [FMLA/CFRA] The family and medical leave laws apply to all public employers and to private employers with 50 or more employees of any kind on the payroll during each of any 20 or more calendar weeks in the current calendar year, or the preceding calendar year. An employee must have been employed for at least 12 months, have worked at least 1250 hours in the 12 months preceding the leave, and be employed at a worksite where 50 or more employees are employed within 75 miles. Eligible employees are entitled to 12 weeks of unpaid leave every 12-months, with continued health benefits and a right to reinstatement. Leave may be taken on an intermittent or reduced schedule basis. Employers must announce the method that they use to compute the 12 months—calendar year, any 12-month period, 12 months after any leave, or 12 months before any leave. Job Descriptions Every employee’s personnel file should contain a current job description. Accurate job descriptions are critical to protecting the employer’s rights when dealing with claims for accommodation under the disability discrimination laws, return to work issues under the Workers Compensation Act, and requests for leave under the family leave statutes. To be effective, a job description must describe the essential functions of the employee’s job, and recite the physical requirements. The employee should sign off on the job description at the start of employment. When an employee’s job changes, the job description should be modified accordingly. If the employee moves to a different job, he or she should sign off on the job description for the new job. Performance Issues Employers may encounter difficulties when a problem employee develops an injury or disability. Taking action against the employee may trigger a retaliation or disability lawsuit. The difficulties will be exacerbated if the employer has not previously documented the problems with the employee, and brought them to the employee’s attention. Therefore, it is essential that supervisors be instructed to write regular evaluations and to share them with the employees. Supervisors must also document all violations of employer policy. After the supervisor has shared the documentation with the employee and obtained the employee’s acknowledgment, the documentation should be placed in the personnel file. Advantages Establishing an aggressive return to work program can assist an employer in several ways—(1) by limiting time away from work, the employer will reduce the need for temporary disability payments, (2) bringing an employee back to work as soon as possible will reduce claims on paid leave balances, (3) the employer will retain the services of valuable employees, (4) retaining the employee will reduce the risk of a lawsuit. How To Implement The program requires designation of an individual as the return to work coordinator. That individual assumes responsibility for returning to work each individual who goes out on a medical leave. It is critical to the success of the program that the employer commit itself to modified duty assignments (even if only a temporary basis), and to identifying alternate jobs. Decisions about job assignments must be based on up-to-date medical information. Employees returning from medical leave should undergo a fitness for duty examination to assure that returning to work will not exacerbate the employee’s condition. Matching Job Description To Job Five years ago, Johnny Jones was hired as a Heavy Maintenance Worker 3 by the City Transportation Department. He had to lift over 75 pounds several times a week. Three years ago, during a period of layoffs caused by a budget crisis, he took over supervision of a discharged supervisor’s lawn-mowing crew. He never has to lift over 10 pounds. After a series of work-related injuries, he has work restrictions that bar him from lifting over 10 pounds. His manager has determined that Johnnie is not qualified for the supervisory position. Should the City discharge Johnnie from his supervisory position? May it return him to the heavy maintenance position? What steps should the City have taken to prevent the dilemma that it faces? Finding a Vacant Position Ruth Davis is a registered nurse assigned to the emergency room of a large university hospital. She slips and falls on a wet spot in the employee cafeteria. Her injury precludes her from standing more than 15 minutes in any hour, and from walking more than one hour during her shift. There are no other nursing positions available in the unit of the hospital where she works. How extensive a search must the hospital make for another job for Ruth? Workers Compensation Leave Jimmie Chee is a legal secretary who spends six out of the eight hours of her day working on documents for three of the attorneys in the law firm where she works. The rest of the time she answers phones and attends to filing. After she develops carpal tunnel syndrome, her workers compensation doctor puts her “off work” indefinitely for treatment. What are the law firm’s obligations under each of the statutes? What steps should the law firm’s return to work coordinator take with respect to this employee? |
Gutierrez, Preciado & House, LLP |