Accidents happen. And all too often, accidents happen at work. A work injury can suddenly and dramatically alter the injured worker’s health, life, take-home pay, and ability to provide for a family. An employer’s insurance company may add to the injured worker’s woes by aggressive tactics in denying or delaying needed medical treatment. Even when an injured worker has overcome these challenges (usually with the help of a skilled attorney), a new challenge often awaits when he or she is medically ready to return to work. Ideally, an injured worker recovers and is released to return to work without restriction. But what if the doctor imposes permanent restrictions or limitations on the worker’s job-related activities?
Within 60 days after an injured worker (with an “accepted” work-related injury) becomes medically “permanent and stationary”, an employer must offer a return to regular, modified, or alternative work for at least 12 months. Otherwise, California’s Workers’ Compensation Statute entitles the injured worker to a “supplemental job displacement benefit.” This means a voucher worth up to $6,000 for job re-training. But the injured worker’s job may be far more valuable than this minimal “re-training” benefit. The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) both offer protections – just as they do when a worker or applicant for employment has a disability or medical condition which is not work-related. Critical questions arise:
Can he or she still perform the essential functions of the job with or without accommodation?
Is a reasonable accommodation available – e.g., modifying a work station or schedule or assigning the returning worker to a vacant position within his or her restrictions?
Would the accommodation the employee needs impose an “undue hardship” on the operation of the business or would it pose a direct threat to the health or safety of the individual or others?
Is the employer complying with the law by engaging in a good faith “interactive process” to determine what accommodation is needed, appropriate and reasonable?
Or is the employer using the injury as an excuse to kick the injured worker to the curb (so to speak!) in violation of the law?
If you’ve suffered a work-related injury or have questions about your employer’s compliance with the disability protection laws, please contact our office for a no-cost evaluation of your situation. Call (619) 239-7200 or visit our website at www.ssvwlaw.com.