Employee About to Vest in Benefits

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1 Terminating Health Insurance Failure of an employer to allow an injured worker who is on temporary disability to pay his health insurance premiums, resulting in cancellation, constitutes employer discrimination. Concord Mechanical Inc., v WCAB (Seaman) (1997) 62 CCC However, if the employer continues paying health insurance benefits for employees who take a medical leave of absence for a non-industrial condition, they must pay the injured workers premiums to the same extent. Employee About to Vest in Benefits FACTS: Employee was laid off 4 months before vesting in PERS, parties settled 132a benefits by C&R which included service credit to vest in PERS. Defendant contended that the layoff was a business necessity due to budgetary constraints. The WCJ found that the layoff violated Labor Code 132a and ordered reinstatement, but Applicant was working elsewhere and wasn t interested in returning to the pre-injury job. The outstanding issues were resolved with a C&R that provided that service credit was being purchased to vest Applicant with five years of service in PERS. The C&R stated that defendants will also reimburse the applicant his gross salary from July 1, 1993 through July 3, 1994 or for a period sufficient to vest the with five (5) years in PERS, whichever is later, with all benefits. PERS granted a disability retirement but because the retirement date was not within 120 days of the separation date, Applicant was not granted medical insurance through PERS. Applicant filed a petition for penalties to enforce the award. DID THE EMPLOYER DISCRIMINATE? PERS Benefits Yes, the court of Appeals found the employer did discriminate be of failure to communicate the required separation date to PERS, resulting in denial of medical coverage as part of Applicant s retirement. Applicant did not receive all benefits as required in the compromise and release. The WCJ concluded that the employer had the power to make medical insurance payments and although he had no jurisdiction over PERS, the C&R was a contract over which he did have jurisdiction. City of Rialto v. WCAB (Phillips) 65 CCC 1317(2000) NOTE That PERS is not within ERISA Federal Preemption. THUS THE TERMINATION OF BENEFITS for City Employees has a special risk and need careful consideration. Copyright 2012 Floyd, Skeren & Kelly, LLP Ethics, Page - 1

2 Lay-Off Status and 132a Protection Does an employer discriminate against an injured worker in violation of Labor Code 132a by changing Applicant's employment status from weekly call-back to daily callback when doing so later results in the employee s termination following his return to work from industrial injury? Departures from Judson Steel The employer did not discriminate because the Applicant failed to prove that he had legal right to weekly call-back status, that his eventual termination resulted from this change in status, or that he was singled out for disadvantageous treatment because of his industrial injury. (Following the principles set forth in Department of Rehabilitation v. Lauher (2003) Micevski vs. WCAB, CBS Broadcasting, Inc., Liberty Mutual Insurance Company (2005) 70 CCC 252, 2005 Cal. Wrk. Comp. LEXIS 19, Court of Appeal, Second Appellate District Labor Code 132a Checklist The claimant experienced an adverse result as a consequence of an industrial injury The claimant had a legal right to receive the deprived benefit or status The employer had a corresponding legal duty to provide or refrain from taking away that benefit or status Was the claimant singled out for disadvantageous treatment? (the language from Micevski) Copyright 2012 Floyd, Skeren & Kelly, LLP Ethics, Page - 2

3 What about the ADA? The Americans with Disabilities Act (ADA) (P.L ) is the most comprehensive civil rights legislation adopted to prohibit discrimination against people with disabilities. Public and private businesses, state and local government agencies, private entities offering public accommodations and services, transportation and utilities are required to comply with the law. The ADA was signed into law by President George Bush on July 26, 1990, extending civil rights protections to individuals with physical or mental disabilities. and the FEHA? Various individual states within the United States have anti-discrimination laws which sometimes differ from federal law; these laws are provided in addition to the federal law, and may offer more desirable avenues to victims of harassment and discrimination. California's FEHA is the primary state law which prohibits discrimination in employment FEHA Amendments Effective January 1, 2001, FEHA has been amended to provide significantly broader protections to employees with disabilities. The amendments include an express declaration that the California statutes are intended to extend beyond the federal Americans With Disabilities Act ("ADA") The requirement to engage in a timely, good faith, and interactive process with the employee to determine a reasonable accommodation for the disability is new. Copyright 2012 Floyd, Skeren & Kelly, LLP Ethics, Page - 3

4 Government Code It shall be an unlawful employment practice. (n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. CITY OF MOORPARK FACTS: Applicant injured her knee at work and returned to work. The City Manager terminated her saying she could not perform her essential job duties as an administrative secretary. Applicant said she could do her work, and wanted to do her work, but was told she could not have her job back. She filed under FEHA and received a right to sue letter. She filed causes of action for discrimination in violation of FEHA, wrongful termination in violation of Public Policy,and intentional infliction of emotional distress seeking both compensatory and punitive damages. Employer filed a demur saying that workers comp was the exclusive remedy. The California Supreme Court held that 132a does not provide the exclusive remedy for discrimination against an injured worker, both FEHA and common law remedies apply. City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, [959 P.2d 752, 77 Cal. Rptr. 2d 445, 63 Cal. Comp. Cases 944] (City of Moorpark) Exclusivity and ADA/FEHA An employee may file simultaneous claims under workers compensation and the ADA. Wood v. County of Alameda (1995) 60 CCC 71. The federal government enacted the American Disabilities Act to: Provide a national mandate to eliminate discrimination against the disabled Establish strong and consistent standards addressing such discrimination Ensure the Federal Government plays an essential role in remedying the discrimination Copyright 2012 Floyd, Skeren & Kelly, LLP Ethics, Page - 4

5 Accommodations Both the federal ADA and the state FEHA require an employer to provide a disabled employee, including injured workers a reasonable accommodations with the goal that the disabled return to the workforce. Reasonable Accommodations The ADA defines reasonable accommodations as accommodations that do not impose undue hardship on the employer. An accommodation that causes the employer significant expense or difficulty is considered an undue hardship under the ADA; What is considered a significant expense for one employer may not be for another. The nature and cost of the accommodations are weighed against such factors as the overall financial resources of the organization, the number of employees, the size of the company budget, the number and types of facilities owned by the company, and whether the accommodation would be disruptive to the company s purpose Examples Examples of accommodations you may be asked to provide: You may have to install a $45 light probe that tells a vision-impaired worker which telephone lines are ringing, on hold or in use. Workers who can lift but not carry heavy sacks may require a cart or dolly. Blocks under the legs of a desk can allow workers in wheelchairs to fit underneath. Flexible schedules can accommodate staff who must visit a physician during the day. An automatic page turner and a voice-activated tape recorder can allow a person without the use of his hands to review files and dictate reports. Copyright 2012 Floyd, Skeren & Kelly, LLP Ethics, Page - 5

6 Technical Assistance There are several sources that offer advice on accommodations many of them at no cost. The ADA Regional Business and Disability Technical Assistance Centers are a major source of information and referrals to specialized local sources. Other sources include state and local vocational rehabilitation agencies. Small business tax credits: A special tax credit can help smaller companies make accommodations required by the ADA. An eligible small business may take a tax credit of up to $5,000 per year for such accommodations. The credit is available for one half the cost of eligible access expenditures of more than $250 but less than $10,250. An eligible small business is one with gross receipts of $1 million or less for the taxable year, or if that criterion does not apply, one with 30 or fewer full-time employees. Cost that qualify include those spent on removing physical or communication barriers, providing interpreters and modifying or buying certain equipment. Tax deduction: A business may deduct up to $15,000 per year for expenses in removing specified architectural or transportation barriers. Covered expenses include the costs of replacing barriers, such as steps, narrow doors, inaccessible parking spaces and toilet facilities. Copyright 2012 Floyd, Skeren & Kelly, LLP Ethics, Page - 6

7 Work Opportunity Tax Credit: The WOTC applies to newly hired individuals from targeted groups, including those in vocational rehab programs. Employers receive a credit of 40 percent of a worker s first-year wages. This program must be reauthorized each year by Congress. DWC Return-To-Work Program L.C (a) (1) The administrative director shall establish the Return-to-Work Program in order to promote the early and sustained return to work of the employee following a work-related injury or illness. (2) This section shall be implemented to the extent funds are available. (b) Upon submission by eligible employers of documentation in accordance with regulations adopted pursuant to subdivision (h), the administrative director shall pay the workplace modification expense reimbursement allowed under this section. L.C Amounts Awarded (1) The maximum reimbursement to an eligible employer for expenses to accommodate each temporarily disabled injured worker is one thousand two hundred fifty dollars ($1,250). (2) The maximum reimbursement to an eligible employer for expenses to accommodate each permanently disabled worker who is a qualified injured worker is two thousand five hundred dollars ($2,500). If the employer received reimbursement under paragraph (1), the amount of the reimbursement under paragraph (1) and this paragraph shall not exceed two thousand five hundred dollars ($2,500). Copyright 2012 Floyd, Skeren & Kelly, LLP Ethics, Page - 7

8 L.C Allowable Expenses (3) The modification expenses shall be incurred in order to allow a temporarily disabled worker to perform modified or alternative work within physicianimposed temporary work restrictions, or to allow a permanently disabled worker who is an injured worker to return to sustained modified or alternative employment with the employer within physicianimposed permanent work restrictions. (4) Allowable expenses may include physical modifications to the worksite, equipment, devices, furniture, tools, or other necessary costs for accommodation of the employee's restrictions. CSUN ATACP Certification Program in Southern California Assistive and Adaptive Technology California State University, Northridge Center on Disabilities 22nd Annual International Technology and Persons with Disabilities Conference March 19-24, Los Angeles, CA The conference will be convened at the Los Angeles Airport Hilton, Marriott, & Renaissance Hotels. This is the biggest event and display of AT in the world. Phone: (818) Copyright 2012 Floyd, Skeren & Kelly, LLP Ethics, Page - 8

9 Three Hotels Full of AT Exhibits An amazing show of assistive technology. For example A whole room full of alternative pointing devices for computers operated by feet, elbows, eye movement and more. Low tech solutions including ergonomic work environment enhancements, chairs, desks, holders of various sizes and shapes. Augmentation devices for sensorial disabilities. (e.g the sonar cane) What if we? Became proactive instead of reactive. Followed ACOEM guidelines and provided a multi-disciplinary treatment team in chronic cases. Surrounded the worker with supports and services including AT and a plan to RTW somewhere. Achieved successful outcomes in our cases. Would we restore some of the public trust and improve our image ethically? Copyright 2012 Floyd, Skeren & Kelly, LLP Ethics, Page - 9