Jim J. from Oakland asks this week's question:
Q: "I was hurt at work and have been placed on workers' compensation. My employer offered me 'modified duty,' which my doctor said I shouldn't do. Now my employer wants me to go on FMLA [Family and Medical Leave Act]. I am worried they are trying to get rid of me. Do I have to go on FMLA when I am on workers' comp? If I go on FMLA and at the end of 12 weeks I can't return, can they fire me when the FMLA ends?"
A: There is a complex interplay between workers' compensation, the California Family Rights Act (the state law equivalent to the Fair Employment and Housing Act) and the Americans with Disabilities Act.
Workers' comp requires your employer to pay you temporary disability benefits and medical care for work-related injuries up and until the time that you are determined to be permanent and stationary, i.e., you are not getting better and you are not getting worse.
At that point, your level of permanent disability is rated and you are assigned a value for that permanent disability based on a formula. This is generally a minimal amount unless you are severely and permanently disabled from any employment.
For a period of time after your work-related injury, an employer has to try to locate modified duty that you can do.
If your employer offers you modified employment, you have a limited period in which to accept that work. An employer is not required to hold a job open indefinitely for an injured worker if the worker is too injured to return to work. At some point, that position can be filled.
Given the interplay between the ADA and workers' comp, discussed more fully below, an employer must be cautious in demanding a return to work at 100 percent.
In some circumstances, an employer seeking not to terminate the individual may suggest that the individual extend his or her leave by taking CFRA and FMLA. Indeed, if your employer knows you qualify, management has to present that alternative.
During that time, the economic payments should first come from workers' comp, paying for the wage loss and the medical expenses, and the employee may choose to use some of his or her accrued time off (vacation, sick or paid time off) to account for the difference between normal wages and the decreased amount workers' comp pays.
Coexisting with all of this is the ADA or, in California, the Fair Employment and Housing Act. These provide that, if you suffer from a disability (a condition that is actually or perceived to limits one or more major life activities) and you can perform the essential functions of your job, with or without a reasonable accommodation, then your employer has to engage in a good-faith interactive process to see if such an accommodation can be provided. This is true for disabilities caused by employment.
If an accommodation would cause an undue hardship to your employer because of cost or the impact that it would have on the process, the employer may state that it can't provide the accommodation and terminate the position. Note: A temporary condition like the flu or an injury that is expected to heal 100 percent is not considered a disability. There needs to be an actual or perceived permanence to the condition.
If you cannot be accommodated, then your employer does not have to continue to employ you. If there is no interactive process and you are the reason why — i.e., you don't trust your employer so you do not meet to discuss accommodations — then the law will fault you for the breakdown and any subsequent termination. If your employer refuses to interact then they are the party held responsible.
So, if you have exhausted your modified-duty options and your options are termination or CFRA-FMLA, take the leave and try to work with your employer to identify a reasonable accommodation under the ADA. Whatever you do, do it in writing so you can demonstrate your efforts and so, hopefully, the human resources department will work with you to preserve your employment. If that doesn't work, contact a trial lawyer to help you either retain your job or hold your employer accountable.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.