RU-94 - Further Revisions

Tuesday, November 26, 2002 | 0

The CA DWC is proposing further revision of the RU-94 Notice of Offer of Modified or Alternative Work. You may recall that the DWC was proposing to add the statement, All employees must present documents required for completion of INS Form I-9 prior to starting modified or alternative work.

DWC's attorney apparently checked with the Immigration Service and was advised that this statement could constitute harassment for those employees who had already provided valid documents. The DWC therefore proposes to remove the statement from the RU-94, rather than create a potential problem for employers.

This is an unfortunate choice considering that a simple solution exists to address the Immigration Service objection. By adding some simple modifications, the documentation requirement can be restricted to only those employees who have not previously provided the employer with valid documents (i.e., undocumented workers). I have therefore proposed the following modification as an alternative to eliminating the language: All employees must have valid documents required for completion of INS Form I-9 on file with the employer prior to starting modified or alternative work.

As noted in last month's article, employers cannot send an unrestricted job offer to an injured employee whose documents have been determined invalid via an audit by the INS, IRS, or Social Security Administration. On the other hand, the Rehabilitation Unit requires some form of evidence that the employer actually has modified or alternative work available before it can find that the employer has met its VR obligation pursuant to Del Taco v. WCAB (Gutierrez) (2000) 79 Cal.App.4th 1437, 65 CCC 342. Since the DWC clearly does not intend to provide assistance in this matter, employers/insurers may wish to address this issue in a cover letter sent with DWC Form RU-94. The letter might contain language similar to the following:

Dear (employee):

Enclosed please find a "Notice of Offer of Modified or Alternative Work." This position is currently available and we have determined that the duties of this job are within your medical restrictions. As indicated, you must advise us regarding your decision to accept or reject this offer within 30 days of this Notice.

Please be advised that federal law requires employers to retain copies of documents for their employees proving legal eligibility to work in the United States. Employees who have provided valid documents are not required to present them again prior to commencing a modified or alternative position. However, if an employee has been identified by a U.S. Government agency as having an invalid social security number, alien registration card, or work permit, he or she will be asked to produce valid documents before commencing employment in the modified or alternative position.

This solution is more cumbersome that having the suggested statement on the RU-94 but it should meet the Unit's need to see evidence that the employer has modified or alternative work available as well as avoid any appearance that the employer is harassing employees who have already provided valid documents.

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