Understanding the intersection between employment law, the interactive process and workers’ compensation is complicated. At the 2017 CWC and Risk Conference Negar Matian, Managing Partner, Matian Law Group, Dana Peterson, Senior Partner, Seyfarth Labor Law Firm, and Darin Hampton, National Safety Coordinator, International Paper Company lead a conversation to explain in depth the intersection between employment law, the interactive process and workers’ compensation.
ADA/FEHA and WC apply to virtually all employees in CA< depending on the employer’s size. WC requires a medical care provider’s note identifying injury or illness, and ER frequently requires a care provider note identifying limitations under ADA/FEHA. FEHA protects disabled employees from discrimination and retaliation (state law). ADA also protects employees from discrimination and retaliation. Workers’ compensation provides benefits to employees who were injured at work(federal law). All ADA violations are FEHA violations but not vice versa.
Disability is defined as an impairment that “substantially limits” a “major life activity” physical or mental. Conditions such as visual impairments, that can be corrected by mitigating measures are excluded. No separate violation for failing to engage in interactive process.
Disability is defined as “any condition” that merely “limits” or makes more difficult a “major life activity”. Failure to engage in interactive process is itself unlawful. Any statement by an employee that he is limited is treated as a request for accommodation.
Workers’ compensation is a benefit system. It provides compensation when an employee is injured as a result of work. It also prohibits discriminating or retaliating against an employee for filing a worker’s compensation claim. In workers’ compensation, benefits are paid while employee is off work due to injury and for any disability as defined by the doctor and the AMA guides. The appointed doctor provides work restrictions and determination as to whether employee can return to work. Employer and doctor can communication with each other on this issue. However in ADA/FEHA, must determine whether the individual has a disability, compensation is not required. Must determine whether individual is able to perform essential functions of the job with or without reasonable accommodation. Must engage in interactive process and must document the interactive process. There are limitations on your ability to communicate with doctors.
But when does the disability require an accommodation? Requires an accommodation when it poses a “barrier” to perform one or more essential job functions. Duty to accommodate means you have a duty to accommodate an employee. Must ask yourself the following: What are the employee’s work restrictions? Do they impact the employee’s ability to perform his/her essential job functions? Are the work restrictions temporary or permanent? Can the employee be returned to work with or without reasonable accommodation?
The Intersection between Employment Law and Workers’ Compensation has multiple facets. Its important to understand each side. Best piece of advice is Document, Document, Document!!!!