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How Injured Workers Can Help Themselves in Getting Back to Work
By Traci M. Hinden, Esq.
An employment lawyer with a background
in workers’ compensation law
gives applicants’ attorneys advice for their clients who want to
return to work and need accommodation while preserving their rights to
claim unlawful employment practices
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Routinely your clients are provided
with work restrictions early on in their cases, only to be told by
their employers, "we cannot accommodate," or if they are "accommodated," it
is some menial task like "push that broom around." And
then one day the broom pushing is no longer available.
Ever ask your
clients whether the employer actually discussed available positions
with them, or whether the employer brought in someone to determine
what accommodations the client would need in order to perform their
jobs within their restrictions? If you did, they would probably all
tell you that the scenario certainly did not play out like that.
Sadly, that means the employers are not following the letter of the
law. And if any of these employers actually discussed accommodations,
what training and education did they have to ascertain what is really
needed to ensure your client's disability is being accommodated?
Invariably what follows the broom pushing for a few months, or the "no,
we cannot accommodate" is "you no longer work here."
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Important
Tips for You & Your
Clients
Statute of Limitations: For discrimination, harassment or retaliation,
failure to accommodate, or engage in the interactive process, or
failure to allow medical leave, the client can file with either/both:
1, The California Department of Fair Employment & Housing (DFEH)
(1-800-884-1684) www.dfeh.ca.gov/DFEH/default/:
365 days from the last date of discriminatory activity to file with
DFEH. Once DFEH issues a “right to sue” letter: SOL: 1
year from the date of issuance to file in civil court. California Government
Code §12940 et seq.
2. and/or the Federal Equal Employment Opportunity Commission (EEOC)
(1-800-669-4000) www.eeoc.gov/ only
180 days from the last date of discriminatory activity. Once the EEOC
issues a “right to
sue” letter: SOL: 90 days to file the civil action
3. and Department of Labor: Family Medical Leave 2 years (1-866-4-USA-DOL)
www.dol.gov/whd/fmla/
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So what can your clients do to ensure
they keep their job?
First, clients must give their restrictions to their employers directly
and not rely on the doctor or the adjuster to inform their bosses.
It is simple due process: the employer has to be apprised of the
need for accommodation. And since your clients have privacy rights,
only the restrictions should be provided to the employer, not the
entire PR-2 or PR-4 or the AME/QME report.
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Clients must give their restrictions
to their employers directly and not rely on the doctor or the adjuster
to inform their bosses. See Milan v. City of
Holtville (2010) 186
Cal. App. 4th 1028. |
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And make sure your clients know their
restrictions. Often they come to me and say, “I was told I
could not be accommodated.” When I ask what their restrictions
are, they do not know. That information is as important to their
livelihood as their Social Security number. They need to know their
restrictions, or else they cannot know what types of other positions
to be looking for so they can ask for those as an accommodation.
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| Make sure your clients know their
restrictions |
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Second, your clients have to know
what the restrictions mean. For instance, if your client is restricted
from standing, but can perform his job seated, then he should know
his restrictions would not prevent him from doing his job. So when
the employer says "we cannot accommodate," the client should
be able to speak up for himself (preferably in writing) and say, "but
to do my job, that restriction does not need to be accommodated."
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| Your client should know whether
the restrictions actually prevent doing the regular job |
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Third, your clients should know what
available positions are open so that way if they cannot perform their
position, they can apply for another, and should put that request
in writing to the employer. As a disabled person, they do not have
to compete for the open position. They should receive preferential
treatment, but most employers who are not educated, or do not want
to be bothered, will not go that extra mile, so your clients should
do it for themselves.
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| Your clients should know what
other positions are available in case they cannot do their regular
work, and apply for them. See Nadaf-Rahrov v. Neiman Marcus (2008)
166 Cal. App. 4th 952. |
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And fourth, clients should never wait
until they are P&S or MMI for restrictions. They can be QIW or
so disabled for your case, and still need accommodations and qualify
under FEHA to get those accommodations at the same time. Besides,
what does sitting at home do for clients if they could work?
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| Clients should never wait until
they are P&S or MMI for restrictions. Under the FEHA a person
is disabled, essentially, if a major life function is limited. This
includes temporary restrictions. California Government Code §12926 |
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Fifth, never let the doctor take clients
off work simply because the employer said they could not accommodate.
If they actually cannot accommodate, they can still collect State
Disability if they are unable to do their “regular or customary” work
and have a disabling condition or restriction(s).
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| Unemployment
Insurance Code §
2626(a): An individual shall be deemed disabled on any day
in which, because of his or her physical or mental condition, he
or she is unable to perform his or her regular or customary work. |
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As an employment lawyer, I need to
prove that my client could have worked all along but the employer
failed to accommodate. But if the doctor signed the PR-2 under penalty
of perjury saying the client could not work, when in fact he could
have worked with restrictions, or the client did not know how to
seek accommodation when available to work, I cannot make my case.
Note, too, that clients may have to comply with time deadlines imposed
by the employer’s internal grievance procedures or union. Send
your clients over early, as ignorance of the law is no excuse for
not filing timely.
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| If the client can return
to work, but the employer is giving the cold shoulder, do not delay
referring the client to an employment lawyer |
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Examples of
frequently encountered situations:
Sally Sue works for Company A for several years, when all of a sudden,
she becomes an injured person (whether the injury occurred on the
job or elsewhere is immaterial). Sally Sue may eventually recover
from her injury, but for now she can only return to work with restrictions.
Option 1: Sally Sue’s restrictions do not
allow her to perform her old position without a reasonable accommodation.
Company A knows of Sally Sue’s injury, as she has provided
them with notes from her doctors. She wants to come back to work,
but Company A says no.
Violation? Yes, if she could have performed her
old position (assuming it was still available) or any other available
position, with or without a reasonable accommodation, the employer
may be liable for:
- disability discrimination
- failure to accommodate
and
- failure to engage in the interactive process.
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California Government Code §12940.
Each item is a separate cause of action under 12940, plus examples
of accommodation are found in that section. They include: accessibility;
job restructuring; reassignment; part-time or modified work; acquisition
or modification of equipment or devices; adjustment or modification
of examinations, training materials or policies, etc. 2 CCR §7293.9.
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Option 2: Sally Sue’s
doctors never gave her restrictions and kept putting her off work
(even though she probably could have done some sort of modification
of her old position or another position currently available at work).
Sally Sue never told her employer she wanted to come back to work,
and sat out on State Disability or temporary disability for several
years. At the end of her workers’ compensation case, she called
her employer for the first time in five years and wanted to come
back to work. Company A says sorry, you no longer work here.
Violation? Probably not. Company A has an affirmative
defense: Sally Sue abandoned her job as she never kept them in
the loop, nor did she ever come to them and ask if she could be
accommodated.
This loss could have been avoided. If Sally Sue had any probability of being
able to do some work, her doctors should have provided her with restrictions.
Had Sally Sue submitted work restrictions in a timely manner, it would have triggered
Company A’s obligation to engage in the interactive process. Both sides
must participate to discern what positions are available that Sally Sue could
perform, with or without a reasonable accommodation. Part time work can be an
accommodation, too. But if no other positions are available and Sally Sue’s
leave becomes indefinite, Company A does not need to hold out for her return.
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See Milan
v. City of Holtville (2010) 186 Cal. App. 4th 1028; California Government Code §12940.
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Joe Clark worked for Company B, where
there are no posters about harassment in the workplace, nor was he
ever informed of what was considered harassing conduct. He overheard
Zamara Poe being called “sexy” and constantly being asked
out by their boss, Slimy Bob. Joe saw Slimy Bob stand in the filing
area in Zamara’s way as she was trying to leave the area. When
Zamara kindly asked Slimy Bob to move, he said, “You have plenty
of room to get by.” Zamara of course did not. After Zamara
maneuvered by Bob, having to brush against him because Bob refused
to move, Slimy Bob said “thanks” in a creepy way. Joe
saw all of this and told Zamara he would testify for her, as he thought
it was sexual harassment. Zamara filed a claim with HR and Joe told
HR what he saw. Nothing happened to Slimy Bob, but both Zamara and
Joe were fired and will not receive their final pay check unless
they agree to sign a waiver saying they will not sue.
Violation? Yes:
- sexual harassment/discrimination based on sex/gender
- hostile work environment
- retaliation
- failure to pay final paycheck, which must be provided, without
conditions, within 24 hours of termination
- failure to prevent the harassment (no posters nor pamphlets
provided explaining what type of conduct was unlawful)
- failure to properly investigate the harassment
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Government Code §12940 and
2 CCR §7287; Labor Code §201; For labor or wage violations,
such as failure to pay final paycheck at all, or timely, or failure
to pay for accrued vacation time, client can file with either/both:
1. California
Division of Labor Standards Enforcement (Labor Commissioner)
1-866-924-9757
- SOL: 4–years if the employment contract is in writing; If
oral: 2 years - California’s Unfair Business Practices Act
(Bus. & Prof. C. §17200 et seq.): 4 years
2. or the National
Labor Relations Board.
1-866-667-6572 - The Fair Standards Labor
Act: SOL: 2 years, or 3 years for willful violations - claim for
minimum wage, unpaid overtime, and other statutory claims: within
3 years from the date the claim arose
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Traci M. Hinden represents plaintiffs in employment litigation
and personal injury suits, lien claimants in workers’ compensation
cases, and does general civil litigation.
Law Offices of Traci M. Hinden
101 California Street, Suite 2450
San Francisco, California 94111
Tel: (415) 781-3030
Fax: (415) 781-3031
Email: traci@hindenlaw.com
Web: www.hindenlaw.com
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