Failing to provide return to work offers as prescribed by the Administrative Director

15% Increase/Decrease in Permanent Disability Indemnity

For injuries occurring on or after January 1, 2005 and prior to January 1, 2013, if within 60 days of the permanent and stationary date, an employer of at least 50 employees does not offer the employee regular work, modified work, or alternative work, in the manner and form prescribed by the administrative director, for a period of at least 12 months, each disability payment remaining to be paid to the injured employee from the date of the end of the 60-day period shall be paid in accordance with Labor Code §4658(d)(1), and increased by 15% thereafter under Labor Code §4658(d)(2). However, there is a 15% decrease in like circumstances when suitable work is offered, whether or not the offer is accepted or rejected by the employee under Labor Code §4658(d)(3)(A).

Supplemental Job Displacement Vouchers

For injuries occurring from 2004 through 2012, an employer may defend against liability for job supplemental job displacement benefit, if within 30 days after temporary disability indemnity is terminated, it offers modified or alternative work, and the employee rejects or fails to reject the offer. Labor Code §4658.6. This voucher is prorated based on the injured worker’s permanent disability rating from $4,000 to $10,000. Under Title 8 CCR §10133.53, employers must utilize the DWC-AD Form 10133.53 to comply with the notice requirements.

For injuries occurring after 2012, an injured worker is not entitled to supplemental job displacement benefits if the employer offers regular, modified, or alternative work which lasts for at least 12 months, and is made within 60 days after receipt by the claims administrator of the first report received from the primary treating physician, an agreed medical evaluator, or a qualified medical evaluator that find the disability from all conditions for which compensation is claimed has become permanent and stationary. Labor Code §4658.7. This voucher may be applied to various educational and training expenses up to an aggregate of $6,000 as identified in Labor Code, §4658.7(e). Under Title 8 CCR §10133.31, employers must utilize the DWC-AD Form 10133.36 to comply with the notice requirements.

Too often employers are not able to take advantage of these “golden nuggets” statutorily provided to employers because they are not complying with the notice requirements prescribed by the administrative director. Employers must ensure that they make the return to regular, modified, or alternative work to the employee in the manner and form prescribed by the administrative director to comply with the law and take full advantage of these “golden nuggets” prescribed by the Labor Code. Such forms prescribed by the administrative director are available online at: http://www.dir.ca.gov/dwc/forms.html.

Failure to Engage in the Interactive Process/Provide Reasonable Accommodation to Employee

The topic of returning employees back to work must coincides with an employer’s duty to engage in the interactive process under California’s Fair Employment Housing Act (FEHA) and the Americans with Disabilities Act (ADA). Under the FEHA and ADA, it is an unlawful employment practice for an employer to fail to make a reasonable accommodation for the known physical or mental disability of an employee, unless it can demonstrate that such accommodation would produce an undue hardship for its operation. Cal. Gov. Code §12940(m); 42 USC §12112(b). Furthermore, it is also an unlawful employment practice for an employer to fail to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. Cal. Gov. Code §12940(n); 42 USC §12112(b).

On April 29, 2014, the Fourth District of the California Court of Appeal, in an unpublished case entitled United Postal Service, Inc. v. Department of Fair Employment and Housing, (UPS Case) affirmed the trial court’s holding that United Parcel Service (UPS) terminated an employee in violation of the FEHA because it discriminated against employee based on a perceived physical disability and failed to take all reasonable steps necessary to prevent discrimination from occurring.

In the UPS Case, the employee sustained an industrial injury to her knee where she underwent two knee surgeries and continued medical care through the workers’ compensation system. Notably, employee went back to work for UPS where she performed the essential functions of her job for the periods she not considered “temporarily disabled” by her doctor. Thereafter, UPS relied upon medical restrictions without relation to her essential job functions to terminate her employment without individually assessing whether employee needed an accommodation -despite the fact that employee was currently performing the essential functions of her position.

The Court reiterated that “employers are required to individually assess an employee’s ability to perform his or her essential job functions to individually assess an employee’s ability to perform essential job functions based on a physician’s medical assessment.” The UPS Case provides for a good example of how workers’ compensation injuries can easily yield exposure to litigation for disability discrimination under FEHA and ADA if not properly handled. The case is accessible online at: http://www.courts.ca.gov/opinions/nonpub/G049493.PDF

Employers often fail to engage in the interactive process each time a work release is provide with or without restrictions, especially when the employee is being treated for a workers’ compensation injury. To prevent exposure to ligation for failure to accommodate and/or provide a reasonable accommodation under the ADA and FEHA employers must remember to engage in the interactive process every time a work release with or without restrictions is provided. Furthermore, the employer must remember that it has a duty to interact with the employee beyond mere receipt of doctor restrictions.

The interactive process includes an “individual assessment” of possible accommodations for the employee based on the essential functions of his or her job and the employee’s work restrictions and capacities from the employee and doctor. Meetings should take place between employer and employee to discuss the possible accommodations for each work restriction provided, and then a selection of a reasonable accommodation (if available) should be followed by the employer’s offer of work. It is imperative that employers thoroughly document and continuously monitor this process to minimize exposure to liability for disability discrimination. More information on disability discrimination is assessable at: http://www.dfeh.ca.gov/ and http://www.eeoc.gov/.