If you have a workers’ comp case in California, odds are that you’ll eventually be able to return to work in some shape or form. But what if there’s no job to return to? Can your California employer fire you while you’re out on workers’ comp leave? Or refuse to take you back once you’ve recovered? Must it offer you an alternative job that fits your qualifications? These questions are answered below.
Unlike some other states, California doesn’t have a law specifically requiring employers to reinstate injured employees when they are ready to work or find them new jobs if they are unable to perform their old jobs. However, California does have a strong anti-discrimination provision. Under Section 132a of the California Workers’ Compensation Code, it is illegal for an employer to fire an employee because of a work injury.
In other words, while an employer is not required to rehire an injured worker, not being able to provide a legitimate business reason for doing so could lead to a discrimination claim. For example, suppose an employee is cleared to return to work and his or her position is still available. The employer refuses to rehire the employee without explanation, advertises for the job for months, and eventually hires an employee with less experience. This might look like evidence of discrimination.
An employer will be able to show business necessity if reasonably believes that the employee is permanently unable to perform the job or that the disability will last so long that it needs to replace the employee.
In some cases, an employee will also need to show that he or she was singled out for less favorable treatment due to the work injury. A neutral policy that is evenly applied among employees will generally not be evidence of discrimination. For example, if your employer has a general rule that all employees on leave of absence must communicate with their supervisor on a regular basis and you’re fired after failing to do so, that will likely not violate the law. On the other hand, if your employer has generous leaves of absence policies for workers who need time off for personal reasons or non-industrial injuries—but fires you only a couple of weeks after your work injury—that might be evidence of discrimination.
If an employee’s work injury or illness is serious enough, it might qualify as a disability under the Americans with Disabilities Act (ADA). The ADA is federal law that requires employers with 15 or more employees to provide reasonable accommodations to workers with disabilities in order to help them perform the job, unless it would cause an undue hardship. The California Fair Employment and Housing Act (FEHA) is a similar state law that applies to employers with five or more employees. (To learn more, see our overview article on the ADA.)
A disability is a physical or mental impairment that substantially limits a major life activity (such as breathing, walking, grooming) or major bodily function (such as the proper functioning of the immune or respiratory system). If your work injury qualifies as a disability, your employer will need to work with you to try to keep you employed. This might include giving you additional time off, changing your work duties, or providing necessary equipment, for example.
The federal Family and Medical Leave Act (FMLA), and the California Family Rights Act (CFRA), require employers with 50 or more employees to provide up to 12 weeks of job-protected leave for a serious health condition. If you have a relatively serious work injury, and it only keeps you out for 12 weeks or less, you might be entitled to return to your normal job. (To learn more, see our article on family and medical leave in California.)
Workers who can’t return to their normal occupations due to a permanent partial disability can receive a supplement job displacement voucher in the amount of $6,000. The voucher can be used to pay for education, training, licensing or certification fees, computer equipment, and vocational counseling. You will receive this voucher only if your employer doesn’t return you to your old job or offer you a suitable alternative job. In this sense, employers have a financial incentive to return you to work.
You might also qualify for California unemployment benefits, if you’re able to work in some capacity but can’t return to work with your former employer. However, applying for these benefits might impact your workers’ comp benefits and vice versa, so consult with a workers’ comp lawyer first.