Returning to Work and Accommodations

All employers work hard to make sure that their employees are as safe as possible at work.  Employers invest in the latest safety technology, form safety committees, and provide training all in an effort to reduce the chances an employee will sustain a work related injury.  Unfortunately, this cannot always be avoided.  If your employee is injured and files a claim for workers’ compensation, it is possible that he or she will have to take some time off work to recuperate.  When the employee returns to work, the employer needs to be aware of the responsibilities they have to the employee to potentially provide accommodations to the employee.

Employers in California have an “affirmative duty” to make “reasonable accommodations” for a known disability.  The employer’s duty to provide an accommodation is triggered when the employer has reliable reason to believe the employee has a disability.  The employer does not have to witness the disability personally and the employee has no obligation to specifically request an accommodation before the employer needs to take action.  The employer needs to accommodate the employer’s disability and work restrictions, but the employer is not required to take measures that would constitute an undue hardship.  The employer is also not required to make sure that the accommodations make it possible for the employee to immediately return to the same job or even a job with the same income.  The employer is not required to make a new job position just for the injured employee, but the employer does have to investigate all the available job openings that the employer could qualify for.  For example, if an employee sustains a back injury that makes it impossible for him to perform his usual duties as a jail warden, the employer is at liberty to offer the employee a desk job at a different facility that would accommodate the restrictions on the warden’s physical activity.  The employer has an obligation to engage in an interactive process with the injured employee to ascertain what sort of accommodation may be required.  The employer should look for alternate positions and continue the dialogue with the employee until he or she terminates the process.  The employer should document these exchanges to make sure that there is evidence of the efforts made to accommodate the employee in case the employee brings a suit against the employer for discrimination or retaliation.

Employers should be aware that they cannot treat non-industrial disability restrictions any differently than a disability or restriction a worker may have as a result of a work-related injury.  Employers must be consistent in how they handle all disability issues.

Workers’ compensation is a long process with a lot of requirements for all parties.  Contact us today for a consultation to talk about your business.

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