April 2000

"Tips" on Temporary Disability Leave

QUESTION :  

We have an employee who is currently off work and receiving temporary disability benefits through the Workers' Compensation program.  As this is the first such employee we've had in some time, could you remind me of some of the pitfalls surrounding Workers' Compensation leave?

ANSWER:

"Pitfalls" may be too strong a word to use here.  However, there are definitely some potential hazards to watch out for in dealing with employees who are beginning or returning from temporary disability leave under the Workers' Compensation program.

DISCUSSION:

One of the first steps to take with employees who are out on Workers' Compensation leave is also one of the most commonly omitted steps: If appropriate, designate the employee's absence as leave under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA).  A serious health condition does not lose its FMLA/CFRA-triggering status simply because it was caused by an on-the-job injury or condition.  By starting the twelve-week FMLA/CFRA clock right away, an employer can

minimize benefits costs, because Workers' Compensation leave does not obligate an employer to maintain benefits like FMLA/CFRA leave does.  Once any available FMLA/CFRA has elapsed, the employees on leave are responsible for their own benefits payments.

Of course, this only applies where the District is large enough to entitle its employees to FMLA/CFRA leave in the first place.  In one of the more peculiar inconsistencies found in any law, all public employers fall within the statutory definition of "employer" under FMLA and CFRA.  However, only employees who work for an employer with 50 or more employees (within a 75-mile highway radius) are eligible to take leave under the Acts.  Of course, no employee is eligible for FMLA/CFRA leave until they have worked for the employer for at least 12 months and no less than 1250 hours during the latest twelve months.

Once the injured employee is out on leave and any FMLA/CFRA designation has been made, the focus rests, at least for a while, on the injured employee and his or her medical provider.  The employee is ultimately responsible to ensure that his or her caregiver provides the employer with an appropriate certification that the condition is ongoing.

Once the employee represents that he or she is ready to return to work, things begin to heat up somewhat.  The parties' interests will often correlate, but not always.  Often, the employee wants to return to work and resume his or her previous life, yet not too quickly that re-injury occurs. The Employer, too, will generally want to return to the status quo, albeit without risk of further injury.  The insurer will also be anxious to return the employee to work.

Despite everyone's apparent interest in returning employees to work as soon as possible, employers should refuse to return an employee to the workforce until he or she is expressly cleared to return to that work.  While this may seem obvious, many employers are pressured-by employees, insurers, or their own business needs-to take shortcuts.  For example, some insurers may be lazy enough to suggest that the employer return the employee to his or her old job on a "trial" basis, to determine which job functions are within his or her physical capabilities.  For the employee (and the insurer, and probably the employee's physician), such a sample period is easy; for the employer, it can be extremely risky.  After all, it is the employer who would be on the hook in the event that injury recurs.  The appropriate way to handle a return-to-work is to provide the caregiver with the physical or mental demands of the job, and seek a medical authorization that spells out any continuing restrictions.

Finally, one overarching concern to keep in mind when dealing with employees on Workers' Compensation leave is the danger of a retaliation claim under Labor Code section 132a.  Employers are expressly forbidden from taking any adverse action against an employee in retaliation for filing or cooperating with a Workers' Compensation claim or investigation.  If you are in doubt about whether any proposed action may trigger retaliation liability under Section 132a, we encourage you to contact the Employment Practices Hotline for fact-specific direction.

The CSRMA Employment Hotline provides free legal advice to all CSRMA members on various employment issues.  For more information on the hotline please call Lynn Lieber with Fisher & Phillips at (650)592-6160.