Disability Discrimination and Workers Compensation Claims

Employers routinely complain about the high cost of workers' compensation insurance. The only thing employers complain more about are employees who make workers' compensation claims.

Employees often times suffer work related injuries which leave the worker temporarily or permanently disabled. Employers frequently acquire tunnel vision when it comes to the industrially injured worker assuming the entire matter is covered by workers' compensation and ignoring or not realizing the separate and distinct obligations of the disability discrimination laws are equally applicable including the duty to engage in the interactive process and provide reasonable accommodations.

A common scenario is the injured worker who is able to return to work with restrictions imposed by his or her doctor. In responding to this scenario, it is surprising how often employers will only allow the worker to return if he or she can provide a release to full duty. One court concluded a policy requiring an employee be 100 percent healed before returning to work is a per se violation of the ADA or American with Disabilities Act. Gelfo v. Lockheed Martin (2006) 140 Cal.App.4th 34.

Another common scenario is when the employer claims it is unable to accommodate relying solely on the restrictions set forth in the medical reports generated in the workers' compensation forum. In this case the employer is failing to engage in the interactive process required under the ADA and the California counterpart. The interactive process requires the employee and employer to exchange and share information to determine if a reasonable accommodation is available permitting the employee to return to work. In the interactive process involves analyzing the job, consulting with the disabled worker, and obtain input from the injured worker's doctor with the objective of ascertaining if a reasonable accommodation exists that will allow the worker to perform the essential duties of the job thus enabling the worker to return to work.

Blindly relying on the medical reports generated in the course of the workers' compensation claim without more does not fulfill the employer's obligation to participate timely and in good faith in the interactive process. Gelfo v. Lockheed Martin (2006) 140 Cal.App.4th 34.

In sum, an employer who requires a full duty release or relies solely on the restrictions set forth in a medical report in refusing to return an injured employee to work may be violating the federal and California version of the ADA. In generally, employees have one year from the date of the adverse employment action to exhaust his/her administrative remedies which is required before a lawsuit can be brought. Thus, it is important that the injured worker should consult with an experienced employment law lawyer to determine if his or her legal rights have been violated as soon as possible after following the adverse employment action.