SJDB vouchers - More FAQs

Saturday, October 8, 2005 | 0

By Alan Leno

The injured worker has PD and accepts an offer of modified work. Before one year elapses, he is terminated for cause. Is he now entitled to a voucher under L.C. section 4659.6(a)?

The Labor code requires the modified job to last for one year but does that requirement extend protection to employees who are terminated for violating company policy or criminal laws?

It is my belief that injured workers would not be entitled to a voucher in this situation but we should expect this circumstance to be litigated because the statute does not specify any exemptions. Logically, we would not expect injured workers to be protected when they violate legitimate company policies (e.g. repetitive tardiness, violence or drug use in the workplace, etc.) or criminal statutes (e.g. theft of company property). Since this is an issue certain to be litigated, employers must fully and appropriately document "terminations for cause." A failure to properly document a termination is almost certain to result in a requirement to provide the employee with an SJDB voucher.

The injured worker has PD and accepts an offer of regular/modified/alternative work. Before one year elapses, he is terminated for cause. Is he now entitled to a 15% increase in weekly PPD benefits?

L.C. section 4658(d)(3)(B) provides that an injured worker's weekly PPD payments shall be increased by 15% where a regular, modified, or alternative job does not last at least one year.

It is hard to imagine that the Legislature intended to reward individuals who violate legitimate company policies or criminal laws. However, the Labor Code is not clear on this issue so we should expect the matter to be litigated. I do not believe the statute intended to reward injured workers in such situations but employers must properly document their terminations if they hope to prevail in cases where they have fired employees for cause. Employers should consult their labor attorneys if faced with this type of scenario.

As a claims examiner, what is my obligation to inform our insured accounts to engage in the "interactive process" when offering modified or alternative work to their injured employees?

Offer of modified or alternative work are made on a "take it or leave it" basis under California's workers compensation laws and that is perfectly legal and acceptable - for the insurance carrier. Unfortunately, such offers do not protect the employer from actions under California's Fair Employment & Housing Act (FEHA).

So what is the insurance adjustor or rehab coordinator's obligation to the insured employer? Your corporate attorney will tell you that you have no obligation and do not discuss the matter with the assured - and s/he is right. Providing advice on FEHA requirements could expose insurers to liability, which is why your corporate attorney doesn't want you giving advice on FEHA issues. What you CAN do safely is to advise your employers to consult with their labor attorney, contact their local Chamber of Commerce office, or visit the Department of Fair Employment and Housing (DFEH) web site at http://www.dfeh.ca.gov. The DFEH web site has good brochures to advise employers regarding their obligations to address reasonable accommodation issues under FEHA.

Is this an important issue for employers? The law firm of Boxer & Gerson in San Francisco recently hired five new attorneys; two of these attorneys are labor specialists. Boxer et al has made it known that they believe the FEHA provides an applicant's firm with an opportunity to assist their clients with return to work efforts and applicant firms with the means to survive the recent workers' comp reforms. Other applicant firms around the State are also taking notice of FEHA requirements as a means to serve their clients. Employers who ignore their FEHA obligations do so at considerable peril. A recent Riverside County FEHA case cost the employer nearly $900,000 - because they didn't talk to their employee about return to work options. That would pay for 16 average comp cases or 56 rehab plans. A word to the wise?

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859, allanleno@leno-assoc.com.

-------------------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.