RTW Programs And FEHA Overlap Issues

The Return-to-Work Program detailed under Title 8, California Code of Regulations[1] provides that if an employer serves an injured worker with a notice of offer of regular work, modified work or alternative work “within 60 calendar days from the date that the condition of an injured employee with permanent partial disability becomes permanent and stationary,” (i.e. the injured worker is not likely to get any better with further treatment) the permanent disability benefit payments shall be decreased by 15 %.  However, if the employer fails to offer regular, modified or alternative work as noted above, the injured employee’s permanent disability benefit payments shall be increased by 15%, if the employer has 50 or more employees.

Additional requirements for the offer of work to be valid are:

1. The employee must be able to perform the essential functions of the job;
2. The job will last at least 12 months;
3.  The wages of the offered position are at least 85% of the injured worker’s  job at the time of injury;
4. The job is located within a reasonable commuting distance from where the injured worker resided at the time of the industrial injury. 

There are two forms that an employer must choose from in order to comply with the regulations: 

• DWC-AD form 10118 Notice of Offer of Regular Work; or,
• DWC-AD form 10133.53 Notice of Offer of Modified or Alternative Work. 

All of this can be done unilaterally by the employer, meaning that the regulations do not require that an employer obtain the employee’s input or cooperation in determining if the injured worker can perform a particular job. Unfortunately, the regulations do not give any guidance on what steps an employer must take to make the determination.  However, what seems to be implied is that the employer take some action to determine if the employer can offer work, given the injured workers’ current capabilities, which is likely to be determined by the work restrictions provided by the physician(s).

When that determination is made, and the employer decides to offer regular, modified or alternative work, the employer must complete the appropriate form (or the workers’ compensation insurance claims adjuster does it for the employer) and send it to the employee to accept or reject.  Once the form is properly sent,  the injured worker’s permanent disability benefits are subject to the 15% decrease, whether or not the injured worker accepts or rejects the offered job.

In the alternative, an employer may decide that there is no work that the injured worker can perform, and thus not offer any work.  In this situation, the injured worker is entitled to a 15% increase in his/her permanent disability benefits, and the employer is still in compliance with the applicable workers’ compensation laws for return-to-work issues.

Unfortunately, This Is Where Employers Often Get Into Trouble

Many employers believe that if the injury/disability was work-related, the only laws that they must comply with are the workers’ compensation laws and regulations.  However, in addition to workers’ compensation laws, employers must also comply with an array of other significant laws pertaining to disabilities. For example, under the Fair Employment and Housing Act and the Americans with Disabilities Act (FEHA/ADA respectively), the employer and employee must engage in an interactive process to determine if the disabled worker can perform the essential functions of the job, with or without a reasonable accommodation.  Thus, an employer who only ensures compliance with the Return-To-Work Program under California’s workers’ compensation laws, may still be in violation of FEHA/ADA. Moreover, even if the employee ultimately returns to work, the employee may still have a claim under FEHA, if the employer failed to properly engage in the interactive process.

Disability discrimination claims under the FEHA have risen dramatically in the last few years and the trend is expected to continue.  Employers face high defense costs in defending FEHA claims, which means that even if the employer successfully defends the claim, the employer may still spend thousands of dollars in defense costs, and that’s assuming there is a “win” and no additional costs in terms of a judgment or settlement amount!

Employers must thus recognize that there are significant overlaps between state disability laws and even federal disability laws that they must comply with, depending on the particular circumstances and facts of each case. And, yes, this means that an employer must know, understand and apply the laws and their nuances, including those related to the complicated overlap between workers’ compensation, the Fair Employment and Housing Act and the Americans with Disabilities Act, or they might find themselves out of business.

[1]Title 8 California Code of Regulations, Chapter 4.5.Division of Workers' Compensation, Subchapter 1.5. Injuries on or After January 1, 1990,  ARTICLE 6.5. RETURN TO WORK  §10117(b).

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