Thursday, November 8, 2007

Total Temporary Disability Does not Discharge Obligations Under the FEHA

Many employers confuse their obligations in workers' compensation matters with their obligations under the ADA or California Fair Employment and Housing Act ("FEHA"). Just because a doctor has declared an employee to be Totally Temporarily Disabled (TTD) for the purposes of workers compensation, does not mean that the employer no longer has an duty to enter into an "interactive process" to find a "reasonable accommodation" to return the employee back to work as required by the ADA and the FEHA. Workers' compensation under the California Labor Code and discrimination under the FEHA (or ADA) protect different rights and operate independently. There is no law to suggest that an employer's obligations under the FEHA are excused because an employee is TTD.

Although TTD technically means that an employee is unable to perform some aspect of his job, workers' compensation doctors do not consider any accommodations that would allow the employee to return to work. In fact, the workers' compensation doctors generally have no idea what accommodations are available as they are not the employer. This is why the ADA and FEHA require an interactive process so that all such accommodation can be considered. Should that process identify alternative work or an accommodation and the workers' compensation doctor approves the employee will no longer be considered TTD.

Such a result is consistent with the legislative intent for the FEHA and the ADA, which are intended to allow disabled employees equal opportunity to work and to reduce the burden on welfare and benefits paid by the state. Unfortunately, most employers believe they owe no further obligation to the employees who are TTD. This is a periless position and can result in liability under certain circumstances.

1 comment:

lauren said...

sO DOES THAT MEAN THE EMPLOYER,HAS A RIGHT TO HARRASS,DISRESPECT,AND DISCRIMINATE YOU WHEN YOU COME BACK TO WORK,AFTER BEING OUT ON WORKMANS COMP,WHEN YOU INJURED YOUR SELF ON THE PREMISES WERE YOU WORK?AND HE'S TELLING YOU ON YOUR FIRST DAY BACK TO WORK THAT HE TOOK YOUR POSITION AWAY,AND THAT YOU WILL NEVER WORK HERE? AND TELLING YOUR COWORKERS BEFORE YOU CAME BACK THAT HE WILL NEVER WORK HERE AGAIN! IF THATS NOT HARRASSMENT I DONT KNOW WHAT YOU WOULD CALL IT! I CAN GO ON AND ON!