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.

Wednesday, November 7, 2007

Return to work from disability leave with doctors restrictions.

Often employers are confronted by employees who wish to return from a medical leave with doctor's restrictions, and employers are perplexed as to what action they must take. As workers' compensation benefits continue to be reduced, employees are looking to their employers to return back to work with more regularity. This is particularly true when there is no more, or very little vocational rehabilitation, such as in California.

Keep in mind that the California Fair Employment and Housing Act (FEHA) and the ADA pursuant to Title VII under federal law, require that employers engage in an "interactive process" to determine "reasonable accommodations" to return disabled employees back to work to the extent that does not create an undue hardship. It is the landscape of this requirement that causes problems for employers and is a hotbed of litigation and a minefield for employers who have little understanding of the law as it relates to their disabled employees.