Up until 1998, injured workers were limited exclusively to worker’s compensation remedies. (Generally, medical treatment, temporary disability / wage loss while unable to work, and permanent disability – an amount intended to compensate for the effects of the injury.)
The California Supreme Court’s decision in City of Moorpark v. Superior Court, 18 Cal.4th 1143 (1998), changed this, however, by providing that individuals may pursue remedies for disability discrimination under both the workers’ compensation system and under the FEHA.
Since Moorpark, the overlap between these two areas of has continued to grow. In 2000, the legislature passed the Prudence K. Poppink Act, which expanded the definition of “disability” under the FEHA beyond that of the ADA, providing more industrially injured workers with protections under the FEHA. Consequently, California courts have seen more hybrid workers’ compensation/FEHA cases over the years. In 2007, the California Supreme Court issued a crucial decision for FEHA disability discrimination litigation in Green v. State, when it established which party bears the burden of proof in such cases. Like many hybrid cases, Green began as a workers’ compensation action. California’s 2013 amendments to the FEHA have, once again, expanded the definition of disability, qualifying even more industrial injuries for FEHA protection.
California’s Fair Employment and Housing Commission’s 2013 amendments broadened the definition of “disability” under the FEHA in a number of ways.
For example, the definition now includes a “perceived disability,” where a person is regarded as, perceived as, or treated as having a disability. The amended regulations also include “perceived potential disability,” which could be established if a person is regarded, perceived, or treated by the employer as having had a physical disability that has no present disabling effect, but it may become a physical disability.
Under the FEHA, an employer is required to provide “reasonable accommodation” for the known physical or mental disability of an employee or applicant. An employer first begins to satisfy this requirement when it engages in an “interactive process” with the worker to determine how the employer can accommodate the worker’s disability.
By comparison, under the workers’ compensation system, employers are not explicitly required to accommodate their industrially injured employees. Notwithstanding this, a combination of Labor Code provisions, workers’ compensation case law, and the FEHA, arguably creates an implied duty for employers to accommodate industrially injured employees. For example, Labor Code Section 132a prohibits employers from discriminating against employees with a workers’ compensation claim. Specifically, case law tells us that pursuant to Section 132a, employers are prohibited from providing “light duty” to some injured workers and not to others without a business necessity.
It follows that because the FEHA requires employers provide “reasonable accommodation” to disabled workers, an employer that complies with the FEHA and provides accommodation to its non-industrially injured workers, must also provide accommodation to its industrially injured employees to avoid treating its injured workers differently. Thus, there is arguably an implied duty to accommodate industrially injured workers, as well as non-industrially injured employees in order to avoid discriminating against them. Further underscoring the growing overlap between workers’ compensation law and the FEHA is another 2013 amendment to the FEHA, which provides that an employer’s obligation to engage in the “interactive process” is triggered when an employee with a disability exhausts leave under the California Workers’ Compensation Act.
Linking Workers’ Compensation with the FMLA
There are many types of “reasonable accommodation” under the FEHA, but one in particular presents yet another potential area of overlap with workers’ compensation law. Extended medical leave has been held to constitute “reasonable accommodation” under the FEHA. Interestingly, this type of accommodation under the FEHA can prove significant in a workers’ compensation case, as well. By way of background, the federal Family Medical Leave Act provides 12 weeks medical leave to an employee for a “serious health condition.” If an industrial injury qualifies as a “serious health condition” under the Family Medical Leave Act (FMLA), an employer, who provides proper notice, may start the clock on an employee’s FMLA leave at the same time the employee takes workers’ compensation medical leave.
Thus, FMLA may run concurrently with a workers’ compensation medical leave. Since an employee’s FMLA leave is limited to 12 weeks and a workers’ compensation leave can last much longer, an employee may max out his FMLA leave while he is out for a workers’ compensation injury. For those employees who have exhausted their FMLA leave and are not authorized to take additional workers’ compensation medical leave, but they still want or need to take additional medical leave, the FEHA’s requirement of “reasonable accommodation” may come into play. Since extended medical leave can constitute “reasonable accommodation,” an employer may have a duty to provide extended medical leave to an industrially injured employee even if the employee has exhausted his statutory medical leave.
Under the FEHA an employer is prohibited from discriminating against a disabled employee, including terminating the employee on the basis of his or her disability. Similarly, under the workers’ compensation system, an employer is prohibited from discriminating against industrially injured employees, which includes failing to reinstate an employee or terminating an employee on the basis of his workers’ compensation claim. Before terminating an applicant who may be “disabled” under the FEHA, an employer should first determine whether it has engaged in the good faith “interactive process” and whether it actually attempted to accommodate the injured worker.
If the employer has satisfied both of these steps, an employer may next look to exceptions to the “reasonable accommodation” requirement or the implied duty to accommodate. Under the FEHA, a number of exceptions can apply, including, the accommodation would result in “undue hardship” on the employer; the position requires a bona fide occupational qualification; the employee is unable to perform job without endangering health or safety of himself or others; or the employee is unable to perform essential job functions even with accommodation. Under the workers’ compensation system, employers are similarly not required to accommodate employees and may even lawfully terminate an injured worker if the employers’ conduct is necessitated by “business realities.”
Several examples of business realities include, at the time reinstatement is sought, the employer reasonably believed the worker is unable to perform the duties of the position without undue risk of re-injury; no positions are available; or the employer reasonably believes that the worker is permanently disabled from performing the job, or will be disabled for such a long time that termination is necessary in light of demonstrated business realities. If any of these exceptions apply, an employer may not be required to accommodate the injured worker and may lawfully terminate the individual. Employers should, of course, consult their legal counsel before taking such action.
A side by side comparison of the remedies available in a Section 132a claim and those available under the FEHA provides clear incentive for industrially injured employees to pursue an additional FEHA claim. A successful Section 132a claim can result in a misdemeanor for the employer, an increase in workers’ compensation benefits, limited to $10,000, reinstatement, and lost wages.
Employers are also advised to always to engage in a good faith “interactive process” whenever there is a chance that the injury could qualify as a FEHA “disability.” Since the accommodation requirement under the FEHA is more explicit, employers who comply with the FEHA’s requirement of “reasonable accommodation” will likely minimize their exposure under both sets of regulations.
Additionally, employers should allocate resources to ensure that they treat their industrially injured and non-industrially injured employees equally. Policies that treat injured employees differently open employers up to liability under both Section 132a and the FEHA. Likewise, it is important that employers remain consistent with their policies. They should remain consistent not only with how they treat some injured workers compared to other injured workers, but also consistent in their approach to injured workers in general.
Employers should also document any attempts to engage in a good faith “interactive process” with the employee and any subsequent communications with the employee regarding accommodations.
Excerpts from California: Changes to FEHA Pose New Liability Risks in Workers’ Compensation Cases, copyright Schmidt Law Offices