Modified Work Offers to Injured Workers

There are a lot of questions about modified work duties.

Larger corporations generally have policies in place to address modified work, but smaller employers may not know how to handle modified work duties. A lot of supervisors don’t understand Labor Code requirements regarding provision of modified work duties.   If they don’t know what to do, then statistically, there’s a strong probability whatever they choose to do is likely the wrong thing. Employers need to be educated by their worker’s compensation insurance carriers on the time frames, requirements, and obligations of offering modified work duties.

Whether modified work is offered will affect the value of your permanent disability settlement if it is during a certain time period and meets certain requirements.  The payment rate, and thus the overall award value, is reduced by 15% if the employer offers you modified work that lasts for 12 months. There are other requirements, like where and how much pay, but that’s the gist of it. If the employer offers you modified work and you reject it, then they can still take the 15% reduction of the award. If you are not offered modified work, then you would get a 15% increase in your rate and overall award of permanent disability. This does not apply to employers with less than 50 (fifty) employees under their worker’s comp policy at the time the policy was purchased.

The offer could involve:

  • Regular work: The employee’s old job, for a period of at least 12 months, paying the same wages and benefits as paid at the time of an injury and located within a reasonable commuting distance of where the employee lived at the time of the injury
  • Modified work: The employee’s old job, with some changes that allows him/her do to it. If the employee’s doctor says s/he will not be able to return to the job s/he had at the time of injury, you are encouraged to offer him/her modified work instead of supplemental job displacement benefits (SJDB). The alternative work must meet your employee’s work restrictions, last at least 12 months, pay at least 85 percent of the wages and benefits your employee was paid at the time s/he was injured and be within a reasonable commuting distance of where your employee lived at the time of injury
  • Alternative work: A new job with different requirements. If your employee’s doctor says s/he will not be able to return to the job s/he had at the time of injury, the employer is encouraged to offer the employee alternative work instead of SJDB. The alternative work must meet your employee’s work restrictions, last at least 12 months, pay at least 85 percent of the wages and benefits your employee was paid at the time she was injured, and be within a reasonable commuting distance of where your employee lived at the time of injury.

If the employer offers an employee modified or alternative work:

  • The employee may have only 30 days to accept the offer. If your employee doesn’t respond within 30 days, you may withdraw the offer. (note the use of “may” – permissive, not mandatory)

If your employee fails to respond to the offer of modified or alternative work within 30 days or rejects the job offer, your employee will probably not be entitled to supplemental job displacement benefits. (–From the DWC website: http://www.dir.ca.gov/dwc/faqs.html )

The actual language of Labor Code section 4658 reads, in part:

(2) If, within 60 days of a disability becoming permanent and
stationary, an employer does not offer the injured employee regular
work, modified work, or alternative work, in the form and manner
prescribed by the administrative director, for a period of at least
12 months, each disability payment remaining to be paid to the
injured employee from the date of the end of the 60-day period shall
be paid in accordance with paragraph (1) and increased by 15 percent.
This paragraph shall not apply to an employer that employs fewer
than 50 employees.
(3) (A) If, within 60 days of a disability becoming permanent and
stationary, an employer offers the injured employee regular work,
modified work, or alternative work, in the form and manner prescribed
by the administrative director, for a period of at least 12 months,
and regardless of whether the injured employee accepts or rejects the
offer, each disability payment remaining to be paid to the injured
employee from the date the offer was made shall be paid in accordance
with paragraph (1) and decreased by 15 percent.
(B) If the regular work, modified work, or alternative work is
terminated by the employer before the end of the period for which
disability payments are due the injured employee, the amount of each
of the remaining disability payments shall be paid in accordance with
paragraph (1) and increased by 15 percent. An employee who
voluntarily terminates employment shall not be eligible for payment
under this subparagraph. This paragraph shall not apply to an
employer that employs fewer than 50 employees.

(Eyes glazing over yet? Yep, that’s why most attorneys wear glasses).  Anyway, there are a lot of rules and regulations to navigate in the employer/employee relationship. So if your employer doesn’t do things exactly right, keep in mind that most negative encounters stem more from cluelessness than outright malice, as that’s the most likely explanation.

Instead of being angry at your (likely clueless) employer, focus on getting well instead.
~Katie