Yesterday, we looked at the first half of attorney James Brown’s “Top 10” tips for complying with California’s disability bias laws. Today, the rest of the list—plus an introduction to a valuable new resource that will quickly become your indispensable guide to California’s complicated workers’ comp laws.
Brown is an attorney with Sedgwick LLP in San Francisco.
6. Don’t let morale issues drive accommodation decisions.
In many instances, an employer may shy away from suggested accommodations because it will appear to co-workers that the employee requesting the accommodation is receiving preferential treatment.
However, qualified employees with disabilities are legally entitled to reasonable accommodations, even when the accommodations may result in preferential treatment. For example, a lifting restriction may require assigning a co-worker to provide some assistance. In other situations, there may be a necessary schedule change that allows the employee to come in later or leave earlier than others.
Similarly, you may be obligated to offer an open position to a qualified employee with a known disability if his disability prevents him from performing the essential functions of his current job, even if more qualified employees want the position.
If the accommodation is otherwise required, a minor inconvenience to the company or co-workers must be ignored and the accommodation provided.
7. HR must communicate with workers’ comp personnel.
It’s imperative that your HR department stay well apprised of the current status of any injured employee’s workers’ compensation claim and the work restrictions or physical limitations identified in the workers’ comp form.
In far too many instances, employers leave the complete handling of any workplace injury claims to their insurance carriers or third-party administrators and never interact with them until the claim is resolved.
Sometimes the employer discovers after an employee has already returned to work that a workers’ comp doctor has imposed significant permanent physical restrictions. In that situation, you must address the work restrictions even if the employee claims that he has been doing the job just fine so the restrictions should be ignored.
Other times, an employee may have been off work because a physician opined that he was totally disabled, but once the workers’ comp claim is resolved, he shows up to work with no restrictions. In that case, you should scrutinize the full medical release and possibly seek additional medical certification.
In either instance, knowledge at the time restrictions are imposed as part of the workers’ comp claim process can preempt the need for later precautions.
8. Don’t let supervisors handle work restrictions alone.
Often, a supervisor is the first one to receive information from an employee that she has work restrictions or to receive the actual physician’s note with work restrictions listed. At that time, it’s imperative that the information be relayed to the HR department and the supervisor be instructed how best to deal with the particular restrictions.
It’s also at this juncture that supervisors sometimes either dismiss the restrictions as too onerous (and terminate the employee) or ignore the request without further action. In some cases, the supervisor makes an independent decision to allow accommodations without being in a position to consider how similar situations have been handled in other parts of the workplace.
HR’s direction is critical to make sure all of your obligations are fulfilled and there’s no differential treatment.
Your complete reference guide to workers’ comp in California—find out more!
9. Be prepared to prove undue hardship.
One of the defenses to not providing an accommodation is that doing so would be an “undue hardship.” In many instances, that means the accommodation was an expensive assistive device such as a specialized computer, workstation, or other ergonomic modification.
However, be aware that the ability to claim undue hardship is proportional to the size of your company. An expense that may be onerous to a smaller employer might not be viewed the same for a larger company.
Likewise, when the accommodation is a leave of absence, you must be able to clearly show that there’s a significant reason the employee’s position cannot be temporarily filled.
A request for an extended leave by a low-level employee who provides basic services may be easier to accommodate than a request from an employee whose services are difficult to replace. The government agencies charged with enforcement of the discrimination laws (the federal Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing) are increasing their enforcement efforts in this area and carefully scrutinizing claims of undue hardship.
10. Coordinate other types of leave with ‘reasonable accommodation’ leaves.
Often an employee has an injury or medical condition that requires a leave of absence that extends beyond the 12 weeks she is usually entitled to under the Family and Medical Leave Act. Sometimes employers have policies allowing an additional month or two of “personal leave.”
However, even when these types of leave are exhausted, you must determine whether the condition leading to the need for the leave is a covered disability (and it usually is) and then consider an additional leave of absence as a reasonable accommodation.
Far too often, employers make the decision to terminate employment once the leaves offered in their employee handbooks are exhausted. Although you generally aren’t required to provide indefinite leave as an accommodation, you must always consider whether a leave of absence can be granted for a specific period of
Master the California Workers’ Comp Rules
Accommodation issues don’t just come into play with the ADA and FEHA. You also need to worry about workers who are returning to their jobs following an injury.
Workers’ comp is one of the few areas of employment law that are almost entirely governed at the state level. And it’s complicated, to say the least:
- What qualifies as a covered injury or illness?
- Should you self-insure?
- Who’s entitled to workers’ comp benefits?
- What do you need to know about the State Compensation Insurance Fund (SCIF)?
- How are premiums calculated—and how can you keep yours as low as possible?
- What should be included in your Injury & Illness Prevention Program (IIPP)?
- What workers’ comp notices must you distribute to employees—and when?
- How do you properly calculate benefits for injured employees?
- What should your return-to-work program look like?
- How does workers’ comp interact with other state and federal leave laws, including FMLA/CFRA and ADA/FEHA?
- What can you do to reduce the risk of workers’ comp disputes—and fraud?
- How should you respond to a workers’ comp-related lawsuit?
Fortunately, answers to all of these questions and more are covered in depth in our comprehensive HR Management & Compliance Report, Workers’ Compensation in California: A Complete Guide for California Employers.
This exclusive report includes everything you need to know for successful management of your company’s workers’ comp program. Order your copy today—your satisfaction is 100 percent guaranteed.
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