Keep Your Eye on the Ball

By: David B. Nusz

For employer HR and Risk Management professionals that’s easier said than done. Anyone who swims in these waters on a regular basis knows there are usually many balls in the air at any given time and just when you dare to feel the least bit comfortable with compliance, the Federal and State Legislatures and Courts change the game, and you find yourself trying to catch a basketball with a baseball glove. It is only natural to be tempted to take the occasional break and try to catch your breath when you get a chance, real or imagined. A workers’ compensation (WC) claim is frequently viewed by employers as such an opportunity. After all, that’s what WC insurance is for. Unfortunately, while the good claims examiners will safely navigate you through the claims process and associated legal compliance related to the WC claim, there are many potential additional legal issues presented during the course of the claim that create traps for the unwary. Because the employer is ultimately responsible for full legal compliance with all laws that intersect with the WC claim, it is imperative they take an active approach. No rest for the weary here. This article is intended to identify a few of the most common employment laws lurking beneath the surface of your WC claims.

FEHA/ADA Interactive Process Requirements
The California Civil Rights Dept. (CCRD), formerly known as the Department of Fair Employment and Housing, has promulgated Regulations to be used for interpreting and enforcing the CA Fair Employment and Housing Act (FEHA). Among many other areas, FEHA covers disability discrimination in the employment context, as does the Federal counterpart The Americans with Disabilities Act (ADA). Both laws require employers to make efforts to provide reasonable accommodations to individuals with disabilities to enable them to perform the essential functions of the job. The process by which potential reasonable accommodations are identified is referred to as the Interactive Process (IP). In CA failure to “promptly” engage in the IP when required to do so by FEHA is a separate cause of action regardless of how obvious the final result may seem to the employer.

Cal. Code Regs. Tit. 2 section 11069 (b) Notice. An employee shall initiate an interactive process when:

  1. An applicant or employee with a known physical or mental disability requests reasonable accommodations, or
  2. The employer otherwise becomes aware of the need for an accommodation through a third party (WC claims examiner and/or WC medical report with temporary or permanent work restrictions), or
  3. The employer becomes aware of the possible need for an accommodation because the employee has exhausted leave under the California Workers Compensation Act, Family Medical Leave Act (FMLA) or California Family Rights Act (CFRA) and hasn’t returned to work.

The CA WC law requires employers to determine whether they can make an offer of permanent modified or alternative employment that meets certain criteria within 60 days from receipt of the permanent work restrictions from the employee’s WC treating Doctor. If not, the employee is generally entitled to a Supplemental Job Displacement Voucher from the WC carrier. There is no requirement under the WC law for the employer to “interact” with the employee or consider potential reasonable accommodations. The sole focus is the WC work restrictions, which are typically intended only to be prophylactic, meaning in theory to protect the employee against the risk of reinjury, which isn’t even something the employer is allowed to consider within the context of the FEHA/ADA IP. Therefore, it is imperative that employers should initiate the IP at any point identified above.

FEHA/Title VII Harassment and Hostile Work Environment Claims
Employers are required to take all reasonable steps to prevent harassment and/or hostile work environments including promptly responding to known complaints. CA WC recognizes both physical and psychiatric Cumulative Trauma (CT) injuries, as well as Specific Injuries (SI). There are exceptions, but the majority of psychiatric injury claims allege individual incidents of harassment (SI) and/or a hostile work environment (CT). This constitutes notice to the employer of a complaint under FEHA/Title VII and it is not legally sufficient to only allow the WC carrier or medical-legal evaluators to investigate the complaints on the employer’s behalf and solely rely on their conclusions. A WC carrier may deny a psych injury claim pursuant to Labor Code section 3600(a)(10) because the worker was employed for less than six months, or because the WC claim wasn’t filed within 12 months of the alleged injury, neither of which have any bearing on a potential lawsuit under FEHA/Title VII. Therefore, when an employer receives a WC claim for a psych injury, they should assume an independent investigation should be initiated.

For employees that are otherwise eligible for protected leave under FMLA/CFRA employers should remember to send out the required Notice of Rights and Responsibilities to WC claimants to ensure time off due to an industrial injury is applied towards their FMLA/CFRA protected leave.

I was not a youth baseball superstar to say the least and was usually placed in right field where there was little anticipated action. In fact, there was so little action that my mind and eyes tended to wonder. However, if a left-handed batter came up, the chances of the ball coming my way went up exponentially and my coaches were concerned enough to alert me whenever that was about to happen. Consider WC claims to be your left-handed batter and don’t get too comfortable out in right field.

This isn’t intended to be legal advice, a comprehensive list and/or discussion. But, I am always available for specific assistance. You can reach me at