In 16 years of practicing employment law exclusively, I am still surprised at how Human Resources professionals apply Workers’ Compensation considerations blindly to determine if an employee with medical restrictions is to be allowed back to work.
There really should be no confusion: the employer’s duty is to reasonably accommodate the employee’s disability if doing so will allow the employee to perform the essential functions of his job without “undue hardship” to the employer. Employers however often will apply a different test. Thinking only in the “workers’ compensation” box of duties and liabilities, they ignore the Americans with Disabilities Act and the California disability accommodation laws.
The California workers’ compensation laws do not require an employer to reasonably accommodate an employee to return to work with medical restrictions. Amazingly, employers sometime think that this gives them a license to deny the employee the opportunity to return to his position unless he can perform all the duties of the position, supported by a medical clearance.
Today I was doing legal research for a client who, I contend, was denied continuing employment because the employer “regarded” her as disabled, or as having a future disability. This kind of discrimination is prohibited by Government Code Section 12940(a) and 12926 which defines “physical disability” not only as an actual disability, but also “being regarded as having a disability.” In the course of my research I came across the following powerful footnote found in the case of Gelfo v. Lockheed Martin (2006) 140 Cal.App.4th 34:
fn11 We reject the argument, asserted in Lockheed’s supplemental briefs, that the company did not “regard” Gelfo at all, but denied him the job solely because he failed to remove all the medical restrictions imposed as a result of his workers’ compensation action as well as its fear of exposure under Labor Code section 4553. Lockheed’s assertion it feared liability based on its “serious and willful misconduct” if it were to rehire Gelfo, thereby potentially subjecting him to “deliberate or reckless injuries,” lacks merit. No employer proceeding in good faith under circumstances such as those at bar would find itself in such a bind. Moreover, Lockheed cannot simply point to the medical reports in Gelfo’s file, and automatically absolve itself of liability under FEHA. A policy requiring an employee be “100 percent healed” before returning to work is a per se violation even under the ADA, because it permits an employer to avoid the required individualized assessment of the employee’s ability to perform the essential functions of the job with or without accommodation. (McGregor v. National R.R. Passenger Corp. (9th Cir.1999) 187 F.3d 1113, 1116.) Also under FEHA, as under the ADA, “an employer cannot slavishly defer to a physician’s opinion without first pausing to assess the objective reasonableness of the physician’s conclusions.” (Gillen v. Fallon Ambulance Service, Inc. (1st. Cir. 2002) 283 F.3d 11, 31.) This is particularly true in a case such as this. The reports on which Lockheed premised its refusal to hire were based, not on an individualized assessment or testing, but on the workers’ compensation doctors’ cursory, generalized opinions about prophylactic measures aimed at avoiding potential injuries to someone with a back injury like Gelfo’s, which might occur by one performing the functions of fabricator. (See id. at p. 32.)
Do not permit your employer to use the excuse that it cannot allow you to return to work based on limitations stated by your workers’ compensation reports. The more critical question is whether the employer has a duty to provide you work within your restrictions if it can do so without “undue hardship.” Note, “undue hardship” will vary with the size and resources of the employer, and it does not mean the employer can escape liability simply because accommodation may be inconvenient or costly. Simply stated, your disability accommodation rights effectively supplement and may even pre-empt the separate duties to provide workers’ compensation benefits. Your workers’ compensation attorney should refer you to a wrongful termination and disability discrimination specialist to assess your rights to “disability accommodation.”
