1) What is the difference between workers’ compensation and disability discrimination laws?
Workers’ compensation provides benefits to worker who are injured on the job or who have an illness, disease, or disability caused or made worse by workplace conditions. An employer has to provide workers’ compensation benefits regardless of who caused the injury. In exchange, employees normally cannot sue their employer for their workplace injuries.
The Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) are the federal and state laws that protect employees with qualifying disabilities from discrimination at work. These laws place a legal duty on employers to provide reasonable accommodations so that employees with disabilities can perform their jobs and have equal access to employment opportunities.
2) When does a work injury qualify as a disability?
A work-related injury may qualify as a disability if it makes basic functions, such as walking, seeing, sleeping, standing, and performing manual tasks, more difficult. A work-related injury may not qualify as a disability law when the injury is temporary, non-chronic or has little to no long-term impact.
An example of an occupational injury that could qualify as a disability is an employee who injured their back at work who can now only lift 25 pounds or less.
For more information on the broad spectrum of people with disabilities protected under disability discrimination laws, click here.
3) Can employer obligations under workers’ compensation and discrimination laws overlap?
Yes. Employers have separate responsibilities to employees under the workers’ compensation system and under disability discrimination laws such as the ADA and FEHA. An employee’s rights under disability laws should be considered any time a worker becomes injured at work.
Workers’ compensation and disability discrimination laws different standards for defining a disability and determining whether an employee can work. For example, an employee rated 100% permanently disabled under workers’ compensation may still be able to return to work with a reasonable accommodation, as required by the ADA and FEHA.
An employer’s duty to accommodate under the ADA and FEHA is a continuing duty that may not be satisfied by simply providing temporary disability benefits or temporary modified duty. For example, an employer who temporarily accommodates an employee’s disability because of a workers’ compensation claim, but stops providing accommodations once the restrictions become “permanent and stationary” has the burden to show why the accommodations are no longer reasonable.
4) I have medical restrictions after my work injury. My employer has not offered me modified or alternative work. What can I do?
Under the workers’ compensation system, an employer may find that they are not able to offer an injured employee modified work. However, if your work injury qualifies as a disability under the ADA and FEHA, you have the right to request a reasonable accommodation. It is important to talk to your employer about accommodating your medical restrictions. Click here to consult the Job Accommodation Network for ideas on accommodations that might work for you.
If your employer does not try to accommodate you before refusing to return you to work, your employer may be discriminating against you based on your disability. Your employer does not have to provide an accommodation that is unduly costly or disruptive for the employer.
5) Can light or modified duty be a type of reasonable accommodation?
Sometimes. For example, if an employer has modified duty positions reserved for employees with on-the-job injuries but does not reserve positions for employees with disabilities not injured at work, the employer must reassign the employee to a reserved modified duty position as a reasonable accommodation if there is a vacant position that the employee is qualified for and can perform.
An employer does not have to create a light duty position for an employee with a disability as a reasonable accommodation. However, an employer must provide other forms of reasonable accommodation unless the employer can show that doing so would be unduly costly or disruptive for the employer.
6) How long can I stay on light or modified duty?
There is no exact amount of time an employee is allowed to stay on light or modified duty. The length of modified duty will depend on your employer’s policy. Your employer is allowed to only temporarily provide modified duty if that is what your policy says.
Employers may create a permanent light or modified duty position for a worker with a disability but are not required to do so. Once light or modified duty is no longer available, your employer should talk with you about whether there are other reasonable accommodations available to you.
7) Do I need to be fully healed or “full duty” before I can return to work?
A policy requiring an injured worker or an employee with a disability to be 100% healed or to be released to work with no restrictions is unlawful under disability discrimination laws. Your employer must decide on an individualized basis whether you can return to your former job, with or without restrictions, or be reassigned to a different position. Your employer should not wait for your injury to become “permanent and stationary” (to reach maximum improvement) to talk with you about reasonable accommodations.
Under the workers’ compensation system, your employer must offer you work that meets the restrictions outlined in your doctor’s most recent report (assuming your doctor has approved some form of return to work). If your employer assigns or offers work that does not meet the work restrictions in your doctor’s report, you do not have to accept it. You should contact a Division of WC Information & Assistance Officer in the local office where your workers’ compensation claim was filed for assistance.
8) My employer has ignored my medical restrictions and assigned me work that I cannot do due to my work-related injury.
If your doctor reports that you may return to work with medical restrictions, any work that your employer assigns must meet these restrictions. Your employer may, for example, change certain tasks, reduce your time on certain tasks, or provide equipment to help you perform your tasks.
Or, your employer may say that work that meets your medical restrictions is not available. If this happens, you cannot be required to work. If your employer cannot give you work that meets your work restrictions, your employer’s insurance agency must pay temporary total disability benefits.
You should show the doctor’s work restrictions to your employer and discuss how your restrictions can be met. You do not have to perform work that is beyond your medical restrictions. If you refuse a work assignment, you should clearly explain to your employer how the assignment fails to meet your restrictions. If possible, do this in writing. If your employer takes or threatens action against you because you won’t accept this work assignment, it could be a violation of disability discrimination laws which prohibit retaliation against disabled workers who need reasonable accommodations.
You should communicate frequently with your employer to discuss your job-related limitations and suggest ideas for accommodations that might work for you and your employer.
9) Can my employer fire me for being injured or disabled?
It is illegal for your employer to treat you badly, punish or fire you for having a disability or a job-related injury, or for filing a workers’ compensation claim.