Have you been injured on the job? Are you currently on leave for a workers’ compensation claim and want to know your rights about returning to work? Below is some information about your rights pertaining to your occupational-related injury and some tips to help you navigate through the process of returning to work.
It is illegal to discriminate against those have been injured on the job. The California Fair Employment Housing Act (“FEHA”) protects injured workers from being discriminated against by their employer. California’s definition of disability is “conditions that limit a major life activity, including physical and mental disabilities, as well as medical conditions.” Fortunately, this definition offers more protection to employees than the Federal definition of employment. Some examples of major life activities include seeing, hearing, walking, standing, lifting, and bending.
Additionally, an injury that may not seem like a “disability” to you may be seen as a “disability” by an employer as it affects your ability to perform the required tasks. For example, if you amputated two of your fingers during a work-related injury and you are a secretary that is required to type for 90% of the time, your employer may see your injury as a “disability” under the FEHA’s definition since you are permanently impaired from performing clerical duties such as typing. On the other hand, if your injury is not a “disability” as defined by FEHA, you do not have the same rights as those who are deemed “disabled,” and your employer is not required to provide reasonable accommodation for you upon your return to work.
It is illegal for an employer to require that an employee return to “full-duty” in order to reinstate the employee to his or her position. The term “full-duty” means that you are able to return to work without restriction or accommodations and are able to perform all duties required prior to your occupational injury. Further, an employer is in violation of FEHA if it prohibits an employee from returning to work simply because the workers’ compensation determination states that he or she has a “permanent disability” or is “totally disabled.” The report may be referring to a different time period or referring to an employee’s status prior to medical treatment or physical therapy. Therefore, it is an employer’s responsibility, with the assistance of rehabilitation counselors and specialists, to determine if an employee is able to perform the job duties that the position requires by also factoring in the work environment and possible accommodations that the employer may provide. An employer must keep medical information of an employee confidential, even after the employee leaves.
It is against the law for an employer to deny an employee to return to work after undergoing medical treatment for a work-related injury simply because the employer anticipates a risk of re-injuring him or herself and incurring more workers’ compensation costs for the employer. This is a form of disability discrimination. The employer must provide reasonable accommodation to the employee if he or she is able to perform the main tasks that are associated with the position.
Additionally, it is illegal to terminate an employee who is on leave due to a work-related injury. An employee who returns to work after suffering an occupational injury is entitled to return to his or her position unless the employer is able to prove that putting the position on hold inflicts an undue hardship on the employer. An employer is prohibited from reassigning an employee with an occupational injury without assessing if it can accommodate the employee by restructuring the position or providing reasonable accommodation. If the employee is unable to perform the basic functions of the position due to his or her injury, the employer is required to reassign the employee to an equivalent position. If there is no equivalent position, the employer must then reallocate the employee to a position of lower grade. However, if there is no available position, an employer is not required to create a new position or move a current employee so that the returning employee has a position to return to.
The laws that govern employee rights with regard to accommodation or medical leave can be complicated. If you have questions about your rights or feel that your employer may be discriminating against you based on an injury you sustained at work, please call an experienced employment law firm, such as Stevens & McMillan.