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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
> History of WC, Part 1
> Getting Back to Work
> Art of Reserving
> Structures Still Relevant
> War Story: Favorite Case
> War Story: Greenhorn
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."
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/
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.

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.

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.
Make sure your clients know their restrictions
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."
Your client should know whether the restrictions actually prevent doing the regular job
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.
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.
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?
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
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).
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.
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.
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
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.

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.

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.
See Milan v. City of Holtville (2010) 186 Cal. App. 4th 1028; California Government Code §12940.

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
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

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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